Interstate Proceedings
I. Uniform Child Custody Jurisdiction and Enforcement Act
The Texas version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is codified at chapter 152 of the Texas Family Code, does not depart materially from the version adopted by the National Conference of Commissioners on Uniform State Laws.
The UCCJEA has been enacted in forty-nine states, as well as the District of Columbia, Guam, and the U.S. Virgin Islands. Massachusetts, the remaining state, continues to use the UCCJA and has pending legislation to adopt the UCCJEA. The UCCJEA governs courts’ jurisdictions to make and modify child custody and visitation (conservatorship and access) determinations. It is not a substantive custody statute, dictating standards for making or modifying custody decisions. Rather, it determines which states’ courts have and should exercise jurisdiction to do so. Its overarching purpose is to prevent conflicting jurisdiction and relitigation of child custody issues and to deter child abduction. See Ruffier v. Ruffier, 190 S.W.3d 884, 889 (Tex. App.—El Paso 2006, no pet.). The UCCJEA does not apply to child support cases.
If a provision of chapter 152 of the Code conflicts with a provision of title 5 or another Texas statute or rule and the conflict cannot be reconciled, chapter 152—the UCCJEA—prevails. Tex. Fam. Code § 152.002. See Seligman-Hargis v. Hargis, 186 S.W.3d 582, 586 (Tex. App.—Dallas 2006, no pet.) (Family Code section 6.406(b), which requires party to divorce to include in suit for divorce a suit affecting parent-child relationship unless children of marriage are under continuing jurisdiction of another court, does not confer jurisdiction on trial court when its provisions conflict with UCCJEA). The UCCJEA may not be used to collaterally attack an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights, however. The plain language of Family Code section 161.211 forecloses a collateral attack premised on an erroneous home-state determination even if that determination implicates a trial court’s subject-matter jurisdiction. In re D.S., 602 S.W.3d 504, 509 (Tex. 2020). Section 161.211(c) provides that a direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights or an affidavit of waiver of interest in a child is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit. See Tex. Fam. Code § 161.211(c).
The UCCJEA identifies four kinds of jurisdiction: initial child custody jurisdiction (Tex. Fam. Code § 152.201); exclusive continuing jurisdiction (Tex. Fam. Code § 152.202); jurisdiction to modify determination (Tex. Fam. Code § 152.203); and temporary emergency jurisdiction (Tex. Fam. Code § 152.204). In re J.P., 598 S.W.3d 789, 795 (Tex. App.—Fort Worth 2020, pet. denied).
There are also provisions in federal law involving interstate child custody. See the federal Parental Kidnapping Prevention Act of 1980 (PKPA) discussion beginning at section 43.21 below.
Texas Family Code section 152.102 contains several key definitions pertinent to the UCCJEA, including the following:
“Child custody determination” means a judgment, decree, or other order of a court providing for legal custody, physical custody, or visitation with respect to a child. The term includes permanent, temporary, initial, and modification orders. The term does not include an order relating to child support or other monetary obligations of an individual.
“Child custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under subchapter D of chapter 152.
“Home state” means the state in which the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with a parent or a person acting as a parent. A period of temporary absence of a parent or person acting as a parent is part of the period.
“Modification” means a child-custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether it is made by the court that made the previous determination or not.
“Legal custody” means the managing conservatorship of a child.
“Visitation” means the possession of or access to a child.
§ 43.3Jurisdiction Prerequisites Generally
Whether a trial court has jurisdiction under the UCCJEA is a matter of subject-matter jurisdiction. In re Salminen, 492 S.W.3d 31, 38 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding) (“Subject matter jurisdiction in child custody matters is determined by reference to the UCCJEA, set out in Family Code Chapter 152.”); Waltenburg v. Waltenburg, 270 S.W.3d 308, 313 (Tex. App.—Dallas 2008, no pet.) (stating that UCCJEA is “exclusive jurisdictional basis for making a child custody determination by a court of this state”). Whether a trial court has subject-matter jurisdiction is a question of law that an appellate court reviews de novo. In re Salminen, 492 S.W.3d at 38; In re Burk, 252 S.W.3d 736, 739 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding [mand. denied]).
The party seeking to invoke the trial court’s jurisdiction has the burden to allege facts that affirmatively demonstrate the court’s authority to hear the case. An appellate court construes the pleadings in favor of the party invoking jurisdiction and considers relevant evidence when necessary to resolve the jurisdictional issue. Seligman-Hargis v. Hargis, 186 S.W.3d 582, 585 (Tex. App.—Dallas 2006, no pet.).
The relevant time for determining whether the trial court had subject-matter jurisdiction under the UCCJEA is at the proceeding’s commencement in a Texas court. In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004) (orig. proceeding); In re B.A.B., 124 S.W.3d 417 (Tex. App.—Dallas 2004, no pet.). “Commencement” means the filing of the first pleading in a proceeding. Tex. Fam. Code § 152.102(5). This rule applies even if the first pleading was filed in a county where venue was improper. In re Milton, 420 S.W.3d 245, 251 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding [mand. denied]).
Family Code section 152.201 establishes a hierarchy of jurisdictional grounds that confer jurisdiction on a Texas court to render an initial child custody determination. This hierarchy in section 152.201(a) is the exclusive jurisdictional basis for making a child custody determination by a Texas court. Tex. Fam. Code § 152.201(b). Home-state jurisdiction is given priority but only in an initial child custody determination. This home-state priority conforms with the PKPA, which gives full faith and credit recognition to orders based on home-state jurisdiction; however, if the court of the state of rendition makes a finding that home-state jurisdiction does not exist, orders based on significant connection/substantial evidence will be given full faith and credit. 28 U.S.C. § 1738A. The four jurisdictional grounds are discussed in sections 43.4 through 43.6 below.
Family Code section 152.203 prescribes conditions for jurisdiction by which a Texas court can modify a child custody determination of another state. Except as otherwise provided by Family Code section 152.204, concerning temporary emergency jurisdiction, a Texas court is prohibited from modifying a custody determination of another state unless a Texas court has jurisdiction to make an original child custody determination under home-state or significant-connection/substantial-evidence grounds and (1) the court issuing the initial determination determines that it no longer has exclusive, continuing jurisdiction under Family Code section 152.202 or that a Texas court would be a more convenient forum under Family Code section 152.207 or (2) the Texas court or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state. Tex. Fam. Code § 152.203. Thus, the Texas court is not authorized to determine that the original-decree state has lost jurisdiction unless it determines that the child and all parties have moved away from the original state.
The UCCJEA does not require that the court consider the child’s best interest when deciding whether to exercise jurisdiction. When interstate jurisdictional issues are present, the court must first decide which state is best positioned to ascertain the child’s best interest. Hart v. Kozik, 242 S.W.3d 102 (Tex. App.—Eastland 2007, no pet.).
A Texas court may exercise “partial” jurisdiction over those portions of a suit for which it has authority. See Tex. Fam. Code § 102.012(a). The court’s authority to resolve all issues in controversy between the parties may be limited by the provisions of the UCCJEA or the Uniform Interstate Family Support Act (UIFSA). In the event of a conflict between chapter 152 (UCCJEA) and other provisions of title 5 of the Texas Family Code, the provision of chapter 152 prevails. Tex. Fam. Code § 102.012(c); see In re Bellamy, 67 S.W.3d 482, 483–84 (Tex. App.—Texarkana 2002, no pet.) (holding that provisions of chapter 152, which allow Texas courts under certain circumstances to retain jurisdiction even if Texas is no longer home state of child, prevail over conflicting provisions in chapter 155). See also Seligman-Hargis, 186 S.W.3d at 586 (section 6.406(b) of Family Code, requiring that suit for divorce include suit affecting parent-child relationship, does not vest trial court with subject-matter jurisdiction if another state would have jurisdiction under UCCJEA).
The UCCJEA does not authorize jurisdiction over a child custody proceeding concerning an unborn child. Arnold v. Price, 365 S.W.3d 455, 461 (Tex. App.—Fort Worth 2011, no pet.); Waltenburg, 270 S.W.3d at 316–18. Although the UCCJEA prevented a Texas court from making a custody determination as part of a divorce proceeding before the child was born, it did not violate the separation of powers doctrine, the open courts provision of the Texas Constitution, or the husband’s equal protection rights under the Fourteenth Amendment to the U.S. Constitution or the Texas Equal Rights Amendment. In re Dean, 393 S.W.3d 741, 748–49 (Tex. 2012) (orig. proceeding).
A Texas court has home-state jurisdiction for an initial custody determination if Texas is the home state of the child on the date of the commencement of the proceeding or if Texas was the child’s home state within six months before the date of the commencement of the proceeding and the child is absent from Texas but a parent or person acting as a parent continues to live in Texas. Tex. Fam. Code § 152.201(a)(1). In determining the child’s home state, the court must focus on the child’s physical presence in a state, not the legal residency of his parents. Powell v. Stover, 165 S.W.3d 322, 328 (Tex. 2005) (orig. proceeding); Seligman-Hargis v. Hargis, 186 S.W.3d 582, 585–86 (Tex. App.—Dallas 2006, no pet.).
In In re S.A.H., an agreed order adjudicating parentage, conservatorship, possession and access, child support, and health-care expenses was entered in Texas. Although the order recited that the trial court had jurisdiction of the case and all parties, the original petition and the accompanying affidavit stated that the child had lived in Mexico since birth (so that Mexico was the child’s home state when the petition was filed) and alleged no other grounds on which the court would have subject-matter jurisdiction under Family Code section 152.201(a). Despite the parties’ agreement, the order was void because the court lacked subject-matter jurisdiction under the UCCJEA. In re S.A.H., 465 S.W.3d 662 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
In In re Estes, 153 S.W.3d 591 (Tex. App.—Amarillo 2004, orig. proceeding), the Texas trial court could not exercise home-state jurisdiction when the mother and the children had been absent from Texas for nine months, despite the father’s position that the absence was a temporary absence in the nature of a vacation.
In Powell, 165 S.W.3d 322, the supreme court disapproved of Estes to the extent that it took into account additional facts and circumstances including the parents’ intent. In Powell, the parents had moved from Texas and lived with their then-only child in another state for more than six months, thereby establishing it as the child’s “home state.” The mother returned to Texas with that child and gave birth to a second child. She then filed for divorce and for custody of and child support for both children. The Texas Supreme Court reversed the trial and appellate courts’ determination that Texas had custody jurisdiction over both children. The court held that the explicit terms of the UCCJEA, in effect in both states, mandate that the home state has jurisdictional priority regarding the father’s subsequent custody suit for the first child, which prevails over the “significant connection” jurisdiction of Texas; Texas has jurisdictional priority regarding custody of the second child.
For Texas to be the children’s home state on the commencement date of the proceeding, the children must have lived in Texas for six consecutive months immediately before the commencement date. Although a temporary absence of a parent may be part of the six-month period, there is no provision for the children’s temporary absence from the state. Thus the trial court abused its discretion by finding that Texas was the home state when the children had been absent from the state for three to four weeks of the preceding six-month period. In re Tieri, 283 S.W.3d 889 (Tex. App.—Tyler 2008, orig. proceeding [mand. denied]). See also Ruffier v. Ruffier, 190 S.W.3d 884, 890 (Tex. App.—El Paso 2006, no pet.) (Texas did not have home-state jurisdiction where, although one or both parents lived in Texas when the suit was commenced, the child had been living with his maternal grandmother in Belarus for more than six months, except for a one-month stay in Texas shortly before the suit was commenced). But see In re Majors, No. 12-15-00193-CV, 2015 WL 7769555 (Tex. App.—Tyler Dec. 3, 2015, orig. proceeding) (mem. op.) (despite parents’ agreement for children to live out of state with father for a one-year period, father could not create jurisdiction under UCCJEA by violating court order and refusing to abide by parties’ agreement to return children to Texas after one year).
§ 43.5Significant-Connection/Substantial-Evidence Jurisdiction
For a Texas court to exercise jurisdiction under the significant-connection/substantial-evidence ground, it must appear that no other state has home-state jurisdiction under Family Code section 152.201(a)(1), or a court of the home state of the child must have declined to exercise jurisdiction on the ground that Texas is a more appropriate forum under Family Code section 152.207 or 152.208. Further, the child and at least one parent or person acting as a parent must have a significant connection with Texas other than mere physical presence in the state, and there must be available in Texas substantial evidence concerning the child’s care, protection, training, and personal relationships. Tex. Fam. Code § 152.201(a)(2); see In re Oates, 104 S.W.3d 571, 578 (Tex. App.—El Paso 2003, orig. proceeding).
In determining whether one state will decline jurisdiction to another, a court may communicate with a court in another state. Tex. Fam. Code § 152.110(b); In re Butterfield, No. 01-18-00903-CV, 2019 WL 2127613, at *7 (Tex. App.—Houston [1st Dist.] May 16, 2019, orig. proceeding) (mem. op.).
Further, if a child has no home state, the trial court may exercise jurisdiction if the child and at least one parent have substantial connections to Texas. In re S.M.A., 555 S.W.3d 754, 759–60 (Tex. App.—Texarkana 2018, no pet.).
A high level of physical presence in Texas is not necessary to satisfy the significant-connection standard. In re S.J.A., 272 S.W.3d 678, 685 (Tex. App.—Dallas 2008, no pet.). Among other factors, courts consider whether the children visited a parent in Texas and whether they maintained a close relationship with a parent or other relatives in Texas, both of which are important considerations under the UCCJEA. In re Forlenza, 140 S.W.3d 373, 377 (Tex. 2004) (orig. proceeding). The fact that one parent continues to reside in Texas, standing alone, is not determinative and does not support an exercise of exclusive continuing jurisdiction. In re Isquierdo, 426 S.W.3d 128, 133–34 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding). The UCCJEA does not premise the exclusive continuing jurisdiction determination on which state has the most significant connection with the child. Forlenza, 140 S.W.3d at 378. The relevant time frame for determining whether the trial court retains exclusive continuing jurisdiction is when the motion to modify the prior custody order is filed. See Forlenza, 140 S.W.3d at 376.
§ 43.6No Other State Has Jurisdiction or Other State Declines Jurisdiction
A Texas court may make an initial child custody determination if it appears that no other state would have jurisdiction under prerequisites substantially in accordance with home-state jurisdiction or significant-connection/substantial-evidence jurisdiction or all other states with such jurisdiction have declined to exercise it on the ground that a Texas court is the more appropriate forum to determine the custody of the child. Tex. Fam. Code § 152.201(a)(3), (a)(4). See In re Marriage of Flowers, No. 06-19-00015-CV, 2019 WL 3949965, at *5–6 (Tex. App.—Texarkana Aug. 22, 2019, pet. denied) (mem. op.); In re Marriage of Marsalis, 338 S.W.3d 131, 138 (Tex. App.—Texarkana 2011, no pet.). A state’s declination of jurisdiction may be implicit. In re T.B., 497 S.W.3d 640, 651 (Tex. App.—Fort Worth 2016, pet. denied) (Florida court’s failure to communicate with Texas trial court or rule on father’s pending motion for over six months constituted an implicit determination by that court to decline to exercise its home-state jurisdiction).
§ 43.7Temporary Emergency Jurisdiction
A Texas court has temporary emergency jurisdiction if the child is present in Texas and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse. Tex. Fam. Code § 152.204(a). Specific provisions pertaining to the effective period of an order issued under section 152.204 and to the mandate for immediate communication between courts of different states with jurisdiction are contained in section 152.204(b)–(d). See Tex. Fam. Code § 152.204(b)–(d).
The duty of a Texas court to recognize and enforce a custody determination of another state is secondary to its duty to protect a child. Saavedra v. Schmidt, 96 S.W.3d 533, 544 (Tex. App.—Austin 2002, no pet.). However, the court’s assumption of temporary emergency jurisdiction does not include jurisdiction to modify another state’s child custody determination. Saavedra, 96 S.W.3d at 549. The court’s assumption of temporary emergency jurisdiction does, however, give the court jurisdiction to terminate parental rights for a child when there has not been any custody determination in the child’s home state. Section 152.204 permits a custody determination rendered via the emergency jurisdiction of a trial court to become final if, among other things, the child’s home state becomes Texas once the order is entered. In re J.C.B., 209 S.W.3d 821 (Tex. App.—Amarillo 2006, no pet.).
Emergency Finding: An “emergency finding” by the court requires evidence that demonstrates that the child has been neglected or subjected to or threatened with mistreatment or abuse or that a serious and immediate question exists concerning the welfare of the child. In re Marriage of Lai, 333 S.W.3d 645 (Tex. App.—Dallas 2009, no pet.). Removal of a child to Texas without the other parent’s knowledge or consent is not enough to warrant exercise of emergency jurisdiction under the UCCJEA absent evidence of abuse or mistreatment. In re S.J., 522 S.W.3d 576 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding).
§ 43.8Exclusive, Continuing Jurisdiction
Once a Texas court renders a final custody order in connection with a child, it acquires exclusive, continuing jurisdiction and may exercise its jurisdiction to modify its order regarding managing conservatorship, possession of and access to the child. Exclusive jurisdiction to modify the custody and visitation issues remains in Texas until (1) the Texas court determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with Texas and that substantial evidence is no longer available in Texas concerning the child’s care, protection, training, and personal relationships or (2) the Texas court or a court of another state making a child custody determination determines that the child, the child’s parents, and any person acting as a parent no longer reside in Texas. Tex. Fam. Code § 152.202(a).
Exclusive jurisdiction continues in the decree-granting state as long as either a significant connection exists or substantial evidence is present. The UCCJEA does not premise the exclusive continuing jurisdiction determination on which state has the most significant connection with the child. See In re Forlenza, 140 S.W.3d 373, 377 (Tex. 2004) (orig. proceeding).
In determining whether children have a significant connection with Texas, courts consider the nature and quality of the children’s contacts with the state. Courts consider whether the children visited a parent in Texas and whether they maintained a close relationship with a parent or other relatives in Texas, both of which are important considerations under the UCCJEA. Visitation within the state is generally considered as evidence of a significant connection, particularly when the children maintain a relationship with relatives in the state other than the noncustodial parent. A high level of physical presence in Texas is not necessary to satisfy the significant-connection standard. However, the children’s actual presence in the state is not the only relevant consideration. One party’s efforts to thwart the other party’s rights to access to the children may be considered in the court’s analysis under section 152.202(a)(1). Cortez v. Cortez, 639 S.W.3d 298, 309 (Tex. App.—Houston [1st Dist.] 2021, no pet.).
In determining whether there is a “significant connection,” the court may consider an absence of visits by the child to Texas from the new state. See In re Dixon, No. 04-19-00162-CV, 2019 WL 2013886, at *2 (Tex. App.—San Antonio May 8, 2019, orig. proceeding) (mem. op.); In re Isquierdo, 426 S.W.3d 128, 132–34 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding).
Exclusive jurisdiction may continue in the original state even if that state’s case has been dismissed. The UCCJEA does not require that the original case be ongoing for the court to maintain exclusive jurisdiction. See In re Tieri, 283 S.W.3d 889, 895–97 (Tex. App.—Tyler 2008, orig. proceeding).
§ 43.9Modification of Custody Decree of Another State
A Texas court may not modify a custody decree of another state unless the Texas court has jurisdiction to make an initial custody determination on home-state or significant-connection/substantial-evidence grounds and (1) the court of the issuing state determines it no longer has exclusive, continuing jurisdiction under provisions in its laws similar to Family Code section 152.202 or that the Texas court would be a more convenient forum or (2) a court of either state determines that the child, the child’s parents, and any person acting as a parent do not reside in the other state. Tex. Fam. Code § 152.203. The UCCJEA does not prescribe any particular form or verbiage by which a court with exclusive, continuing jurisdiction demurs to a state, like Texas, that has ac-quired initial-determination jurisdiction by being a child’s home state and that could therefore be given modification jurisdiction. In re J.P., 598 S.W.3d 789, 798 (Tex. App.—Fort Worth 2020, pet. denied).
Loss of Jurisdiction under PKPA: Under the PKPA, the state of original rendition retains continuing jurisdiction of its custody order as long as the court continues to have jurisdiction under its state law and one contestant (any person who claims a right to custody or visitation of a child) continues to reside in that state. 28 U.S.C. § 1738A(b)(2), (d).
COMMENT: Although section 152.103 provides that the UCCJEA does not govern an adoption proceeding, it does apply if the adoption involves a modification of a prior custody determination. If the child being adopted has been the subject of another legal proceeding, such as a child abuse or neglect case, a paternity suit, or a divorce action, the UCCJEA will apply.
§ 43.10Simultaneous Proceedings in Another State
The purpose of the simultaneous proceeding statute is to deal with situations where a Texas court and the court of another state are both legitimately exercising custody jurisdiction at the same time. In re C.H., 595 S.W.3d 272, 278 (Tex. App.—Amarillo 2019, no pet.). Except for temporary emergency jurisdiction under Family Code section 152.204, a Texas court may not exercise its jurisdiction under the UCCJEA if, at the time of filing of the petition, a proceeding concerning the custody of the child has been commenced in a court of another state exercising jurisdiction substantially in conformity with the UCCJEA, unless the proceeding has been terminated or is stayed by the court of the other state because a Texas court is a more appropriate forum. Tex. Fam. Code § 152.206(a).
Before hearing a custody proceeding, the court shall examine the court documents and other information supplied by the parties pursuant to Family Code section 152.209. See section 43.13 below for the requirements. If the court determines that a child custody proceeding has been commenced in another state with jurisdiction substantially in accordance with the UCCJEA, the Texas court shall stay its proceeding and communicate with the court of the other state. If the court of the other state does not determine that the Texas court is a more appropriate forum, the Texas court shall dismiss the proceeding. Tex. Fam. Code § 152.206(b).
In a proceeding to modify a child custody determination, a Texas court shall determine whether a proceeding to enforce the determination has been commenced in another state. If so, the court may stay the modification proceeding pending action by the other court, enjoin the parties from continuing the enforcement proceeding, or proceed with the modification under conditions it considers appropriate. Tex. Fam. Code § 152.206(c).
A Texas court with jurisdiction to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised on the court’s own motion, the motion of a party, or the request of another court. Tex. Fam. Code § 152.207(a). Unlike the home-state jurisdictional provisions, section 152.207 does not restrict the trial court to the date that the custody case was filed in determining if Texas is an inconvenient forum. In re C.H., 595 S.W.3d 272, 277 (Tex. App.—Amarillo 2019, no pet.). Evidence of inconvenient forum can be presented via affidavits or a bench brief with affidavits attached. An evidentiary hearing is not required by section 152.207. Lesem v. Mouradian, 445 S.W.3d 366, 375–76 (Tex. App.—Houston [1st Dist.] 2013, no pet.); see also Seiler v. Seiler, No. 03-19-00020-CV, 2021 WL 81864, at *4 (Tex. App.—Austin Jan. 8, 2021, pet. denied) (mem. op.) (trial court not limited to evidence duly admitted at hearing in making its section 152.207 forum determination but may also rely on affidavits and exhibits attached to motions and pleadings).
A litigant may also pursue a declaratory judgment to raise the issue of inconvenient forum under section 152.207. Monk v. Pomberg, 263 S.W.3d 199 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Family Code section 152.207 applies only when Texas has jurisdiction but determines it is not a convenient forum. It is not applicable to address whether another state with jurisdiction may be an inconvenient forum. In re W.T.H., No. 04-16-00055-CV, 2017 WL 603649, at *4 (Tex. App.—San Antonio Feb. 15, 2017, no pet.) (mem. op.).
Determining Factors of Inconvenient Forum: In determining the issue of inconvenient forum, the court shall consider whether it is appropriate for a court of another state to exercise jurisdiction. The trial court may consider any relevant factor when deciding whether to decline jurisdiction for inconvenient forum. Barabarawi v. Rayyan, 406 S.W.3d 767, 774 (Tex. App.—Houston [14th Dist.] 2013, no pet.). In making its determination, the court shall allow the parties to submit information and shall consider all relevant factors, including—
1.whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
2.the length of time the child has resided outside Texas;
3.the distance between the court in Texas and the court in the state that would assume jurisdiction;
4.the relative financial circumstances of the parties;
5.any agreement of the parties about which state should assume jurisdiction;
6.the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
7.the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
8.the familiarity of the court of each state with the facts and issues in the pending litigation.
Tex. Fam. Code § 152.207(b). This list of factors is not exclusive. In re T.B., 497 S.W.3d 640, 646 (Tex. App.—Fort Worth 2016, pet. denied). If it is determined that Texas is an inconvenient forum and there is no more appropriate forum, the court should not refuse to exercise its jurisdiction. See Creavin v. Moloney, 773 S.W.2d 698, 704–05 (Tex. App.—Corpus Christi–Edinburg 1989, writ denied); see also In re Minschke, No. 13-20-00508-CV, 2021 WL 1844240, at *11 (Tex. App.—Corpus Christi–Edinburg May 7, 2021, orig. proceeding) (mem. op.) (detailed analysis of statutory factors in conjunction with record evidence established Texas was inconvenient forum).
Procedure Once Determined That Texas Is Inconvenient Forum: If a Texas court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, the court shall stay the proceedings on condition that a child custody proceeding be promptly commenced in another named state and may impose any other condition the court considers just and proper. Tex. Fam. Code § 152.207(c).
Incidental Proceedings: If the child custody determination is incidental to an action for divorce or another proceeding, the court may either exercise its jurisdiction under the UCCJEA or decline to do so. Tex. Fam. Code §§ 152.102(4), 152.207(d).
§ 43.12Texas Declines Jurisdiction by Reason of Conduct
If a Texas court has jurisdiction under the UCCJEA by virtue of the petitioner’s engaging in some unjustifiable conduct (such as removing, secreting, or restraining the child), the court shall decline to exercise its jurisdiction unless the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction, or a court of the state otherwise having jurisdiction under the UCCJEA determines that Texas is the more appropriate forum, or no court of any other state would have the appropriate jurisdiction. Tex. Fam. Code § 152.208(a). See In re S.L.P., 123 S.W.3d 685 (Tex. App.—Fort Worth 2003, no pet.) (mother’s failure to disclose previous custody proceedings in another state in her initial pleadings and her act of holding children in Texas for two years after running away from their father’s home in Washington constituted unjustifiable conduct mandating Texas court’s refusal to exercise jurisdiction). Section 152.208 focuses on the conduct of the party seeking to invoke a Texas court’s jurisdiction. In re P.M.K., No. 05-15-01181-CV, 2017 WL 462343 (Tex. App.—Dallas Jan. 30, 2017, no pet.) (mem. op.) (UCCJEA did not require Texas court to consider alleged unjustifiable conduct by mother, because it was father who sought to invoke Texas court’s jurisdiction.)
A court dismissing a petition or staying a proceeding because of the petitioner’s conduct shall assess against the petitioner necessary and reasonable expenses, including costs, communication expenses, attorney’s fees, and travel expenses of the party and witnesses unless the party against whom fees are being assessed can establish that the assessment would be clearly inappropriate. Tex. Fam. Code § 152.208(c).
Unless each party resides in Texas, every party in a child custody proceeding must, in that party’s first pleading or in an affidavit attached to that pleading, give information under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party has participated as a party, as a witness, or in any other capacity in any other proceeding concerning the custody of or visitation with the same child (and, if so, identify the court, the case number, and the date of any child custody determination), whether the party knows of any proceeding that could affect the current proceeding (and, if so, identify the court, the case number, and the nature of the proceeding), and whether the party knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal or physical custody of, or visitation with, the child (and, if so, the names and addresses of those persons). Tex. Fam. Code § 152.209(a).
If a party fails to provide the required information, the court may stay the proceeding until the information is furnished. Tex. Fam. Code § 152.209(b).
If the declarant answers in the affirmative to any of the sworn items, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath about the details of the information furnished and about the other matters pertinent to the court’s jurisdiction and the disposition of the case. Tex. Fam. Code § 152.209(c).
Each party has a continuing duty to inform the court of any proceeding in Texas or any other state that could affect the current proceeding. Tex. Fam. Code § 152.209(d).
If a party alleges in an affidavit or a pleading under oath that disclosure of identifying information will jeopardize the health, safety, or liberty of a party or child, the information must be sealed and may not be disclosed to the other party or the public unless, after hearing, the court orders disclosure. Tex. Fam. Code § 152.209(e).
Notice of proceedings under the UCCJEA must be given to all persons entitled to notice in Texas as in a child custody proceeding between Texas residents, any parent whose rights have not been previously terminated, and any person having physical custody of the child. Tex. Fam. Code § 152.205(a). Chapter 152 does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard. Tex. Fam. Code § 152.205(b).
Notice required for the exercise of jurisdiction over a person outside Texas must be given in a manner reasonably calculated to give actual notice in any manner prescribed by Texas law. Tex. Fam. Code § 152.108(a).
§ 43.15Recognition of Out-of-State Child Custody Determinations
The Texas court shall recognize and enforce a child custody determination of a court of another state if that court exercised jurisdiction in substantial conformity with the UCCJEA or if the determination was made under factual circumstances meeting the jurisdictional standards of the UCCJEA, as long as the determination has not been modified in accordance with the UCCJEA. Tex. Fam. Code § 152.303(a).
§ 43.16Registration of Out-of-State Child Custody Determinations
Family Code section 152.305 permits the registration of an out-of-state child custody determination, which will then have the legal effect of a child custody determination issued by a Texas court. Registration is achieved by sending to the Texas court—
1.a letter or other document requesting registration;
2.two copies, including one certified copy, of the determination to be registered, along with a sworn statement that, to the best of the declarant’s knowledge and belief, the order has not been modified; and
3.except as otherwise provided in Family Code section 152.209, the name and address of the person seeking registration and any parent or person acting as parent who has been awarded custody or visitation in the determination to be registered.
The registering court must then file the determination as a foreign judgment, serve notice on all persons identified in the registration, and give those persons an opportunity to contest the registration. The notice must state that the registered determination is enforceable as of the date of the registration, that a hearing to contest the registration must be requested within twenty days after service of the notice, and that failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted. Tex. Fam. Code § 152.305(b), (c).
If no timely request for a hearing is made, the registration is confirmed as a matter of law, and the person requesting registration and all persons served must be notified of the confirmation. Confirmation of the order by operation of law or after a hearing precludes further contest of the order with respect to any matter that could have been asserted at the time of registration. Tex. Fam. Code § 152.305(e), (f).
If a contest is filed, the court shall conduct a hearing and confirm the registered order unless the person contesting registration establishes that the issuing court did not have jurisdiction under the UCCJEA, that the determination being registered has been vacated, modified, or stayed by a court having jurisdiction to do so under the UCCJEA, or that the person contesting the registration did not have adequate notice. Tex. Fam. Code § 152.305(d). While section 152.305 does not specifically require an evidentiary hearing, the trial court abuses its discretion by failing to hold an evidentiary hearing where there are contested issues of fact regarding the adequacy of notice to the contesting party. Razo v. Vargas, 355 S.W.3d 866, 874 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
While section 152.205(b) states that chapter 152 does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard, section 152.205(b) confines its scope to “the enforceability of a child custody determination,” as compared with the registration of one. Under the UCCJEA, the enforcement of a child custody determination is distinct from its registration. The plain language of section 152.305(d)(3) does not require compliance with the notice standards under section 152.108 unless the person contesting registration met his burden to establish that he was “entitled to notice” in the court proceeding where the order was issued. Tucker v. Campos, No. 03-20-00515-CV, 2021 WL 3572678, at *5 (Tex. App.—Austin Aug. 13, 2021, no pet. h.) (mem. op.).
The former UCCJA did not provide for any method of enforcing a child custody determination. Section 152.308 of the UCCJEA provides for a prompt enforcement of a child custody determination regardless of whether the order has been issued by a Texas court or a court of another jurisdiction. The provisions are very similar to the enforcement provisions of Family Code subchapter H, chapter 157 (concerning habeas corpus), but several important differences exist.
An appeal may be taken from a final order in a proceeding under Family Code chapter 152, subchapter D, in accordance with accelerated appellate procedures in other civil cases. Tex. Fam. Code § 152.314. If the appellant chooses to file an appeal, the time lines for an accelerated appeal are mandatory. See In re K.L.V., 109 S.W.3d 61, 67 (Tex. App.—Fort Worth 2003, pet. denied).
See chapter 36 of this manual for more extensive coverage of this topic.
§ 43.18Other Provisions of UCCJEA
Taking Testimony in Another State: A party to the proceeding may offer testimony of witnesses who are located in another state, including parties and the child, by deposition or other means allowed in Texas for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms on which the testimony is taken. Tex. Fam. Code § 152.111(a).
Temporary Visitation: A Texas court not having jurisdiction to modify a child custody determination may issue a temporary order enforcing a visitation schedule made by a court of another state or the visitation provisions of a child custody determination of another state that fails to provide a specific schedule. A court making an order in the latter situation shall specify a period it considers adequate to allow the petitioner an opportunity to obtain an order from a court having jurisdiction under the UCCJEA, and the order remains in effect until an order is obtained from the other court or the period expires. Tex. Fam. Code § 152.304.
Communication between Courts: A Texas court may communicate with a court in another state concerning a proceeding arising under chapter 152 of the Family Code. The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made. If proceedings involving the same parties are pending simultaneously in a Texas court and a court of another state, the Texas court shall inform the other court of the simultaneous proceedings and request that the other court hold the proceeding in that court in abeyance until the Texas court conducts a hearing to determine whether the court has jurisdiction over the proceeding. Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties, and a record need not be made of the communication. Except under those circumstances, a record must be made of any communication under section 152.110. The parties must be informed promptly of the communication and granted access to the record. For purposes of section 152.110, a “record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. Tex. Fam. Code § 152.110. To preserve error, a party must object to the lack of a record of these communications. See Seiler v. Seiler, No. 03-19-00020-CV, 2021 WL 81864, at *6 (Tex. App.—Austin Jan. 8, 2021, pet. denied) (mem. op.).
Section 152.110 is a procedural rather than a jurisdictional statute. In re J.P., 598 S.W.3d 789, 799 (Tex. App.—Fort Worth 2020, pet. denied). If a trial court has substantially but imperfectly complied with section 152.110, error in this communication procedure will be harmless error. See In re J.P., 598 S.W.3d at 800–01.
[Sections 43.19 and 43.20 are reserved for expansion.]
II. Parental Kidnapping Prevention Act
In 1980 Congress passed the Parental Kidnapping Prevention Act (PKPA), codified at title 28, section 1738A, of the United States Code. See 28 U.S.C. § 1738A. The purpose of this act is to deter interstate abductions of children by noncustodial parents and to facilitate the enforcement of custody and visitation decrees rendered by other states by giving full faith and credit to child custody determinations made in conformity with the PKPA. Once a state exercises jurisdiction consistently with the jurisdictional prerequisites of the PKPA, each state must give full faith and credit to the sister-state custody order.
COMMENT: The PKPA varied in several respects from the original Uniform Child Custody Jurisdiction Act. It is hoped the adoption of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) eliminated the inconsistencies between the two.
Key definitions pertinent to the PKPA include the following:
“Contestant” means a person, including a parent or grandparent, who claims a right to custody or visitation of a child.
“Custody determination” means a judgment, decree, or other order of a court providing for the custody of a child and includes permanent and temporary orders and initial orders and modifications.
“Home state” means the state in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent for at least six consecutive months and, in the case of a child less than six months old, the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the persons are counted as part of the six-month or other period.
“Modification” and “modify” refer to a custody or visitation determination that modifies, replaces, supersedes, or otherwise is made subsequent to a prior custody or visitation determination concerning the same child, whether made by the same court or not.
“Physical custody” means actual possession and control of a child.
“Visitation determination” means a judgment, decree, or other order of a court providing for the visitation of a child and includes permanent and temporary orders and initial orders and modifications.
§ 43.23Determining If Sister State Had Jurisdiction
The PKPA does not confer jurisdiction on a state but provides for enforcement of custody and visitation determinations rendered under the jurisdictional prerequisites set forth in the PKPA.
A child custody or visitation determination made by a court of a state is consistent with the provisions of the PKPA only if the court had jurisdiction under the law of the state and either the court has continuing jurisdiction under the PKPA (see section 43.24 below) or one of the jurisdictional provisions discussed below—home state, significant connection/substantial evidence, abandonment/emergency, and lack of jurisdiction in any other state—is met. 28 U.S.C. § 1738A(c). The PKPA does not create the hierarchy for jurisdiction found in the UCCJEA and discussed in sections 43.4 through 43.7 above.
Home State: The home-state jurisdictional ground is met if the forum state is the home state of the child on the date of the commencement of the suit or the forum state had been the child’s home state within six months before the date of the commencement of the proceeding and the child is absent from the state because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in the forum state. 28 U.S.C. § 1738A(c)(2)(A).
Significant Connection/Substantial Evidence: This jurisdictional ground exists if it appears that no other state has home-state jurisdiction and it is in the best interest of the child that a court of the state assume jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with the state other than mere physical presence and there is available in the state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships. 28 U.S.C. § 1738A(c)(2)(B).
Abandonment/Emergency Jurisdiction: The abandonment/emergency jurisdiction-al ground exists if the child is physically present in the state and either the child has been abandoned or it is necessary in an emergency to protect the child because the child, a sibling, or a parent of the child has been subjected to or threatened with mistreatment or abuse. 28 U.S.C. § 1738A(c)(2)(C).
No Other State Has Jurisdiction: The remaining alternative jurisdictional ground exists if it appears that no other state has jurisdiction or another state has declined to exercise jurisdiction on the ground that the state whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and it is in the best interest of the child that such court assume jurisdiction. 28 U.S.C. § 1738A(c)(2)(D).
§ 43.24Continuing Jurisdiction
The jurisdiction of a state court that has made a child custody or visitation determination consistently with the jurisdictional provisions of the PKPA continues as long as it has jurisdiction under that state’s laws and the state remains the residence of the child or of any contestant. 28 U.S.C. § 1738A(d).
§ 43.25Modification of Custody or Visitation Determination
A court of a state may modify a custody determination of a child made by a court of another state if it would have jurisdiction to make an initial child custody determination and the court of the other state no longer has jurisdiction or has declined to exercise such jurisdiction to modify its custody order. 28 U.S.C. § 1738A(f).
A court of a state may not modify a visitation determination made by a court of another state unless the court of the other state no longer has jurisdiction to modify the visitation determination or has declined to exercise jurisdiction to modify it. 28 U.S.C. § 1738A(h). The UCCJEA defines the circumstances under which a state no longer has exclusive jurisdiction to modify. See the discussion in section 43.8 above.
§ 43.26Simultaneous Proceedings in Another State
A court of a state shall not exercise jurisdiction in a custody or visitation proceeding begun when a proceeding in another state is pending if the court of the other state is exercising jurisdiction consistently with the provisions of the PKPA. 28 U.S.C. § 1738A(g).
[Sections 43.27 through 43.30 are reserved for expansion.]
III. Uniform Interstate Family Support Act
The Uniform Interstate Family Support Act (UIFSA), codified at chapter 159 of the Texas Family Code, establishes guidelines for courts in exercising jurisdiction over original family support orders and subsequent modifications. It also provides the procedures for child support orders rendered by courts of another state and of certain foreign countries to be enforced in Texas. While UIFSA is state law, there is also federal law involving interstate child support enforcement. See the federal Full Faith and Credit for Child Support Orders Act (FFCCSOA) discussion beginning at section 43.51 below.
In the event of a conflict between chapter 159 and other provisions of title 5 of the Family Code, the provisions of chapter 159 prevail. Tex. Fam. Code §§ 102.012(c), 159.001; see Attorney General v. Litten, 999 S.W.2d 74, 77 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
2015 amendments to Code chapter 159 include provisions based on the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (“Hague Maintenance Convention” or “Convention”), which was ratified by the United States and became effective January 1, 2017. Those amendments provide special rules concerning support proceedings under the Convention, which are discussed in section 43.45 below. For a list of Convention countries, see www.hcch.net/en/instruments/conventions/status-table/?cid=131.
A Texas court must apply subchapters B through G (sections 159.101–.616) and, as applicable, subchapter H (sections 159.701–.713) of chapter 159 to a support proceeding involving a foreign support order, a foreign tribunal, or an obligee, obligor, or child residing in a foreign country. A Texas court that is requested to recognize and enforce a support order on the basis of comity may apply the procedural and substantive provisions of subchapters B through G. Subchapter H applies only to a support proceeding under the Convention. In such a proceeding, if a provision of subchapter H is inconsistent with subchapters B through G, subchapter H controls. Tex. Fam. Code § 159.105.
Family Code section 159.102 contains several key definitions pertinent to UIFSA, including the following:
“Convention” means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007.
“Foreign country” means a country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and (1) that has been declared under U.S. law to be a foreign reciprocating country, (2) that has established a reciprocal arrangement for child support with Texas, (3) that has enacted a law or established procedures for the issuance and enforcement of support orders that are substantially similar to the procedures under UIFSA, or (4) in which the Convention is in force with respect to the United States.
“Foreign support order” means a support order of a foreign tribunal.
“Foreign tribunal” means a court, administrative agency, or quasi-judicial entity of a foreign country that is authorized to establish, enforce, or modify support orders or to determine parentage of a child. The term includes a competent authority under the Convention.
“Home state” means the state or foreign country in which a child lived with a parent or a person acting as parent for at least six consecutive months immediately preceding the time of filing of a petition or a comparable pleading for support and, if a child is less than six months old, the state or foreign country in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.
“Initiating tribunal” means the tribunal of a state or foreign country from which a petition or comparable pleading is forwarded or a petition or comparable pleading is filed for forwarding to another state or foreign country.
“Issuing foreign country” means the foreign country in which a tribunal issues a support order or a judgment determining parentage of a child.
“Issuing state” means the state in which a tribunal issues a support order or a judgment determining parentage of a child.
“Issuing tribunal” means the tribunal of a state or foreign country that issues a support order or a judgment determining parentage of a child.
“Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
“Record” means information that is inscribed on a tangible medium or stored in an electronic or other medium and that is retrievable in a perceivable form.
“Register” means to file in a Texas tribunal a support order or judgment determining parentage of a child issued in another state or a foreign country.
“Registering tribunal” means a tribunal in which a support order or a judgment determining parentage of a child is registered.
“Responding state” means a state in which a petition or comparable pleading for support or to determine parentage of a child is filed or to which a petition or comparable pleading is forwarded for filing from another state or a foreign country.
“Responding tribunal” means the authorized tribunal in a responding state or foreign country.
“State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian nation or tribe.
“Support order” means a judgment, decree, order, decision, or directive, whether temporary, final, or subject to modification, issued in a state or foreign country for the benefit of a child, spouse, or former spouse that provides for monetary support, health care, arrearages, retroactive support, or reimbursement for financial assistance provided to an individual obligee in place of child support. The term may include related costs and fees, interest, income withholding, automatic adjustment, reasonable attorney’s fees, and other relief.
“Tribunal” means a court, administrative agency, or quasijudicial entity authorized to establish, enforce, or modify support orders or to determine parentage of a child.
Certain other definitions related to proceedings under the Convention appear in section 43.45 below.
Before the 2015 amendments to chapter 159, the definition of “state” included qualifying foreign countries, defined in terms that have been incorporated into the definition of “foreign country” in section 159.102(5)(A)–(C) of the current Family Code. When the Convention provisions do not apply, evidence must be presented to establish that a comity applies or that a reciprocal agreement exists with another country or the foreign order cannot be recognized. In In re V.L.C., 225 S.W.3d 221 (Tex. App.—El Paso 2006, no pet.), the court found that an order entered by a Mexican court related to child support was not governed by UIFSA and that the Texas court had jurisdiction to enter an initial child support order in a suit affecting the parent-child relationship when no evidence was presented to establish that a federal reciprocal agreement exists, that Texas has a reciprocal agreement with any state in Mexico, or that Mexico has laws or procedures substantially similar to those of UIFSA.
§ 43.33Bases for Jurisdiction over Nonresident
Under Family Code section 159.201, a Texas court may exercise personal jurisdiction over a nonresident in a proceeding to establish or enforce a support order or determine parentage of a child if—
1.the nonresident is personally served with citation in Texas;
2.the nonresident submits to the jurisdiction of Texas by consent in a record, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
3.the nonresident resided with the child in Texas;
4.the nonresident resided in Texas and provided prenatal expenses or support for the child;
5.the child resides in Texas as a result of the acts or directives of the nonresident;
6.the nonresident engaged in sexual intercourse in Texas and the child may have been conceived by that act of intercourse;
7.the individual asserted parentage of a child in the paternity registry maintained in Texas by the vital statistics unit; or
8.there is any other basis consistent with the constitutions of Texas and the United States for the exercise of personal jurisdiction.
A Texas court may also exercise personal jurisdiction over a nonresident who signed an acknowledgment of paternity of a child born in Texas. Tex. Fam. Code § 102.011(b)(7)(B). Because section 159.201 is permissive rather than mandatory, it is within the court’s discretion to decline to exercise personal jurisdiction. Frazer v. Hall, No. 01-11-00505-CV, 2012 WL 2159271, at *3 (Tex. App.—Houston [1st Dist.] June 14, 2012, no pet.) (mem. op.).
These bases of personal jurisdiction, or those in any other Texas law, may not be used to acquire personal jurisdiction for a Texas tribunal to modify a child support order of another state unless the requirements of Family Code section 159.611 are met or, in the case of a foreign support order, the requirements of section 159.615 are met. Tex. Fam. Code § 159.201(b).
§ 43.34Continuing, Exclusive Jurisdiction to Modify Child Support Order
A party seeking to modify a support order from another state must establish jurisdiction pursuant to UIFSA. Tex. Fam. Code § 156.408; In re T.L., 316 S.W.3d 78, 83 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); Link v. Alvarado, 929 S.W.2d 674, 676 (Tex. App.—San Antonio 1996, writ dism’d w.o.j.).
A Texas court that has issued a child support order consistent with Texas law has and must exercise continuing, exclusive jurisdiction to modify its child support order if the order is the controlling order and (1) when a request for modification is filed, Texas is the residence of the obligor, the individual obligee, or the child or (2) even if Texas is not the residence of such a person, the parties consent in a record or in open court that the Texas court may continue to exercise jurisdiction to modify its order. Tex. Fam. Code § 159.205(a); see In re B.O.G., 48 S.W.3d 312, 317 (Tex. App.—Waco 2001, pet. denied) (trial court lacked jurisdiction to modify child support order since neither obligor, obligee, nor child resided in Texas when motion was filed). Under UIFSA, once a Texas court that has jurisdiction enters a support order, that court is the only court entitled to modify the decree as long as it retains continuing, exclusive jurisdiction. A court of another state may enforce the Texas support decree, but that court has no authority to modify the support order as long as one of the parties remains in Texas, the issuing state. UIFSA, unlike the UCCJEA, provides no mechanism for the issuing tribunal of a support order to decline to exercise continuing exclusive jurisdiction and transfer jurisdiction to modify a support order to a court in another state. In re Meekins, 550 S.W.3d 729 (Tex. App.—Houston [1st Dist.] 2018, orig. proceeding).
A Texas court that has issued a child support order consistent with Texas law may not exercise continuing, exclusive jurisdiction to modify the order if (1) all the parties who are individuals file a consent in a record with the Texas court that a tribunal of another state (with jurisdiction over an individual party or located in the state where the child resides) may modify the order and assume continuing, exclusive jurisdiction or (2) the Texas order is not the controlling order. Tex. Fam. Code § 159.205(b).
If a tribunal of another state modifies a Texas child support order under UIFSA, Texas courts must recognize the continuing, exclusive jurisdiction of the other state’s tribunal. Tex. Fam. Code § 159.205(c). Conversely, any purported modification of a Texas order by another state is void if statutory requirements set out above are not satisfied. In re T.L., 316 S.W.3d at 86. In In re T.L., the father claimed that the parties consented to Louisiana’s assuming jurisdiction to modify a Texas order because the mother executed a written request to the state IV-D agency to stop collection efforts and close her case. The court held that the request filed with the state’s enforcement agency did not comply with UIFSA requirements and did not constitute consent for Louisiana to assume continuing exclusive jurisdiction.
A Texas court that lacks continuing, exclusive jurisdiction to modify a child support order may serve as an initiating tribunal to request a tribunal of another state to modify a support order issued in that state. Tex. Fam. Code § 159.205(d).
§ 43.35Enforcement of Support Order by Tribunal Having Continuing Jurisdiction
A Texas court that has issued a child support order consistent with Texas law may serve as an initiating tribunal to request a tribunal of another state to enforce the order if the order is the controlling order and has not been modified by a tribunal of another state that assumed jurisdiction under UIFSA. The Texas court may also request a tribunal of another state to enforce a money judgment for arrears of support and interest on the order that accrued before a determination that an order of a tribunal of another state is the controlling order. Tex. Fam. Code § 159.206(a).
COMMENT: This provision authorizes, but does not require, that an initiating state be involved to forward a case to another state. Under UIFSA, a tribunal may serve as a responding tribunal even when there is no initiating tribunal in another state. This accommodates the direct filing of an action in a responding tribunal by a nonresident.
A Texas court having continuing jurisdiction over a support order may act as a responding tribunal to enforce the order. Tex. Fam. Code § 159.206(b).
UIFSA recognized that under predecessor enactments, states had been able to create multiple, valid orders. To move to a concept of one tribunal’s having continuing, exclusive jurisdiction over the child support obligation, UIFSA contains provisions for a tribunal to determine which one order controls the prospective support obligation. UIFSA also determines which tribunal will have the continuing, exclusive jurisdiction to modify the prospective support obligation.
If only one tribunal has issued a child support order concerning the obligor and child, the order of that tribunal controls and must be so recognized. Tex. Fam. Code § 159.207(a).
If two or more child support orders have been issued by tribunals of Texas, another state, or a foreign country concerning the same obligor and same child, a Texas court having personal jurisdiction over both the obligor and the individual obligee shall apply the rules in Family Code section 159.207(b) and by order determine which order controls and must be recognized. If only one of the tribunals issuing an order would have continuing, exclusive jurisdiction under UIFSA, that tribunal’s order controls. If more than one of the tribunals would have continuing, exclusive jurisdiction, an order issued by a tribunal in the child’s current home state controls if there is such an order; if not, the order most recently issued controls. See Ellithorp v. Ellithorp, 346 S.W.3d 583 (Tex. App.—El Paso 2009, pet. denied). If none of the tribunals would have continuing, exclusive jurisdiction, the Texas court shall issue a child support order that controls. Tex. Fam. Code § 159.207(b).
If two or more child support orders have been issued for the same obligor and same child, on request of a party who is an individual or that is a support enforcement agency, a Texas court having personal jurisdiction over both the obligor and the individual obligee shall determine which order controls under Family Code section 159.207(b). A request to determine which is the controlling order may be filed with a registration or as a separate proceeding and must be accompanied by a copy of each order in effect and the record of payments. The requestor must give notice to each party whose rights may be affected. Tex. Fam. Code § 159.207(c), (d).
The Texas court that determines by order which is the controlling order or issues a new controlling order shall state in its order the basis on which it made its determination; the amount of prospective support, if any; and the total amount of consolidated arrears and accrued interest, if any, under all of the orders after all payments made are credited as provided by Family Code section 159.209. The party obtaining an order determining which is the controlling order shall, within thirty days of its issuance, file a certified copy of the controlling order with each tribunal that issued or registered an earlier child support order. Failure to file subjects the party or support enforcement agency that obtains the order to sanctions but does not affect the validity or enforceability of the controlling order. Tex. Fam. Code § 159.207(f), (g).
An order that has been determined to be the controlling order, or a judgment for consolidated arrears of support and interest, if any, made under section 159.207, must be recognized in UIFSA proceedings. Tex. Fam. Code § 159.207(h).
§ 43.37Simultaneous Proceedings in Another State
A Texas court may exercise jurisdiction to establish a support order if the pleading is filed after a pleading is filed in another state or a foreign country only if the Texas pleading is filed before expiration of the time allowed in the other state or the foreign country for filing a responsive pleading challenging the exercise of jurisdiction by the other state or the foreign country, the contesting party timely challenges the exercise of jurisdiction in the other state or the foreign country, and, if relevant, Texas is the child’s home state. Tex. Fam. Code § 159.204(a).
A Texas court may not exercise jurisdiction to establish a support order if the pleading is filed before a pleading is filed in another state or a foreign country if the pleading in the other state or foreign country is filed before expiration of the time allowed in Texas for filing a responsive pleading challenging the exercise of jurisdiction by Texas, the contesting party timely challenges the exercise of jurisdiction in Texas, and, if relevant, the other state or foreign country is the child’s home state. Tex. Fam. Code § 159.204(b).
Unless provided otherwise in UIFSA (see section 43.42 below), a responding tribunal in Texas shall apply the procedural and substantive law generally applicable to similar proceedings originating in Texas and may exercise all powers and provide all remedies available in those proceedings, and the tribunal shall determine the duty of support and the amount payable in accordance with Texas law and support guidelines. Tex. Fam. Code § 159.303.
§ 43.39Pleadings and Accompanying Documents
In a UIFSA proceeding, a petitioner seeking to establish a support order, determine parentage of a child, or register and modify a support order of a tribunal of another state or a foreign country must file a petition and, unless nondisclosure is otherwise ordered under Family Code section 159.312, provide the name, residential address, and Social Security number of the obligor and of the obligee or the parent and the alleged parent and the name, sex, residential address, Social Security number, and date of birth of each child for whose benefit support is sought or whose parentage is to be determined. Unless filed at the time of registration, the petition must be accompanied with a copy of any support order known to have been issued by another tribunal. Tex. Fam. Code § 159.311(a).
The petition must specify the relief sought, and it and the accompanying documents must conform substantially with requirements imposed by certain federally mandated forms. Tex. Fam. Code § 159.311(b).
The physical presence of a nonresident party seeking to establish, enforce, or modify a child support order is not required if the petition includes that party’s testimony in an affidavit or other document complying with the federally promulgated general testimony form. Tex. Fam. Code § 159.316(a), (b). See In re L.A.F., No. 14-21-00046-CV, 2022 WL 3093525 (Tex. App.—Houston [14th Dist.] Aug. 4, 2022, no pet. h.) (mem. op.).
If a party alleges in an affidavit or pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of specific identifying information (such as residence address and Social Security number), that information must be sealed and may not be disclosed to the other party or the public. After a hearing in which a court takes into consideration the health, safety, or liberty of the party or child, the court may order disclosure of information that the court determines to be in the interests of justice. Tex. Fam. Code § 159.312.
§ 43.40Establishment of Support Order or Determination of Parentage
Establishment of Support Order: If a support order entitled to recognition under UIFSA has not been issued, a responding Texas court with personal jurisdiction over the parties may issue a support order if the individual seeking the order resides outside Texas or the support enforcement agency seeking the order is located outside Texas. Tex. Fam. Code § 159.401(a); see In re M.I.M., 370 S.W.3d 94, 97–98 (Tex. App.—Dallas 2012, pet. denied) (subject-matter jurisdiction proper where UIFSA petition filed and Texas has ability to establish personal jurisdiction over respondent). Tex. Fam. Code § 152.208, which allows court to decline jurisdiction because of the unjustifiable conduct of the person seeking to invoke jurisdiction, does not apply to UIFSA cases brought under chapter 159. In re M.I.M., 370 S.W.3d at 99–100.
The responding Texas court may issue a temporary child support order in limited circumstances as set out in Family Code section 159.401(b). See Tex. Fam. Code § 159.401(b). But see In re Sanders, No. 05-16-00617-CV, 2016 WL 3947093 (Tex. App.—Dallas July 18, 2016, orig. proceeding) (mem. op.) (Colorado order lacking specific provision for child support but requiring parties to split expenses, including medical, health insurance, and extracurricular activities, qualified as a “support order” under UIFSA, which deprived Texas of jurisdiction over mother’s request for child support).
On finding, after notice and an opportunity to be heard, that an obligor owes a duty of support, the court shall issue a support order directed to the obligor and may issue other orders under Family Code section 159.305. Tex. Fam. Code § 159.401(c).
Determination of Parentage: A Texas court authorized to determine the parentage of a child may serve as responding tribunal in a proceeding to determine parentage brought under UIFSA or a law substantially similar to UIFSA. Tex. Fam. Code § 159.402.
§ 43.41Direct Enforcement of Income-Withholding Order of Another State
An income-withholding order issued in another state may be sent by or on behalf of the obligee or by a support enforcement agency to the person defined as the obligor’s employer under Family Code chapter 158 without the prior filing of a petition or comparable pleading or registration of the order with a Texas court. Tex. Fam. Code § 159.501. On receipt of an income-withholding order, the obligor’s employer shall immediately provide a copy of the order to the obligor. The employer shall treat an income-withholding order issued in another state that appears regular on its face as if the order had been issued by a Texas court. Tex. Fam. Code § 159.502(a), (b).
The employer shall withhold and distribute the funds as directed in the withholding order by complying with the terms of the order that specify (1) the duration and amount of periodic payments of current child support, stated as a sum certain; (2) the designated payee and the address; (3) medical support and dental support, whether periodic cash payments, stated as a sum certain, or an order for the employer to provide health insurance coverage or dental insurance coverage; (4) the amount of periodic payments of certain fees and costs, stated as sums certain; and (5) the amount of periodic payments of arrearages and interest, stated as sums certain.
The employer shall comply with the law of the state of the obligor’s principal place of employment with respect to the employer’s processing fee, the maximum amount to be withheld from the obligor’s income, and the times within which the payments must be withheld and forwarded. Tex. Fam. Code § 159.502(d).
If an employer receives two or more income-withholding orders with respect to the same obligor, the employer satisfies the terms of the orders if the employer complies with the law of the state of the obligor’s principle place of employment to establish the priorities for withholding and allocating income withheld for two or more child support obligees. Tex. Fam. Code § 159.503.
An employer who complies with an income-withholding order issued in another state in accordance with these provisions is not subject to civil liability with regard to the withholding. Tex. Fam. Code § 159.504. An employer who willfully fails to comply with an income-withholding order issued by another state and received for enforcement is subject to the same penalties that may be imposed for noncompliance with a Texas order. Tex. Fam. Code § 159.505.
The obligor may contest the validity or enforcement of an income-withholding order issued in another state and received directly by an employer in Texas by registering the order in a Texas court and either filing a contest to the order as provided in Family Code chapter 159, subchapter G, or otherwise contesting the order in the same manner as if the order had been issued by a Texas court. The obligor must give notice of the contest to a support enforcement agency providing services to the obligee, to each employer that has directly received an income-withholding order relating to the obligor, and to the person designated to receive payments in the withholding order or, if no person is designated, to the obligee. Tex. Fam. Code § 159.506.
§ 43.42Enforcement of Support Order after Registration
Registration of Order for Enforcement: A support order or income-withholding order issued in another state or a foreign support order may be registered in Texas for enforcement. Tex. Fam. Code § 159.601.
Procedure to Register Order for Enforcement: Except as otherwise provided by Family Code section 159.706 (see section 43.45 below), a support order or income-withholding order of another state or a foreign support order may be registered in Texas by a party’s sending to the appropriate Texas court a letter of transmittal requesting registration and enforcement; two copies, including one certified copy, of the order to be registered, including any modification of the order; a sworn statement by the person requesting registration or a certified statement by the custodian of the records showing the amount of any arrearage; the name of the obligor and, if known, the obligor’s address and Social Security number, the name and address of the obligor’s employer and any other source of income of the obligor, and a description of and the location of property of the obligor in Texas not exempt from execution; and, except as otherwise provided by Family Code section 159.312, the name and address of the obligee and, if applicable, of the person to whom support payments are to be remitted. Tex. Fam. Code § 159.602(a).
The procedural requirements of Family Code section 159.602 are mandatory. Failure to include a sworn statement by the party requesting registration or a certified statement by the custodian of records showing the amount of any arrearage will prevent registration of the order. In re Chapman, 973 S.W.2d 346, 348 (Tex. App.—Amarillo 1998, no pet.). But see Kendall v. Kendall, 340 S.W.3d 483, 500 (Tex. App.—Houston [1st Dist.] 2011, no pet.), in which the court held that specific procedural registration requirements under section 159.602 are not jurisdictional, where the parties had actual notice of the proceedings, expressly invoked the jurisdiction of the Texas court, and stipulated in the initial New York divorce action that further proceedings would take place in Texas. Failure to strictly comply with section 159.602’s registration procedures does not deprive the Texas courts of subject-matter jurisdiction over a foreign support order. Any complaint about failure to properly register a foreign support order may be addressed by a direct appeal of the subsequent enforcement order, but not by collateral attack.
On receipt of a request for registration, the court shall cause the order to be filed as an order of a tribunal of another state or a foreign support order, together with one copy of the documents and information, regardless of their form. Tex. Fam. Code § 159.602(b).
A petition or comparable pleading seeking a remedy that must be affirmatively sought under another Texas law may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought. Tex. Fam. Code § 159.602(c).
If two or more orders are in effect, the person requesting registration must furnish the court a copy of each support order asserted to be in effect in addition to the other required documents, specify any order alleged to be controlling, and specify the amount of consolidated arrears, if any. Tex. Fam. Code § 159.602(d).
A request for a determination of which order is the controlling order may be filed separately from or with a request for registration. The person requesting registration must give notice of the request to each party whose rights may be affected. Tex. Fam. Code § 159.602(e).
Effect of Registration for Enforcement: A support order or income-withholding order issued in another state or a foreign support order is registered when the order is filed in the registering court in Texas. A registered support order issued in another state or a foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a Texas court. Unless specifically authorized in subchapter G of Family Code chapter 159, a Texas court shall recognize and enforce, but may not modify, a registered support order if the issuing tribunal had jurisdiction. Tex. Fam. Code § 159.603.
Notice of Registration of Order: When a support order or income-withholding order issued in another state or a foreign support order is registered, the Texas court registering the order shall notify the nonregistering party. The notice must be accompanied with a copy of the registered order and the documents and relevant information accompanying the order. Tex. Fam. Code § 159.605(a).
The notice must inform the nonregistering party that a registered order is enforceable as of the date of registration in the same manner as an order issued by a Texas court, that a hearing to contest the validity or enforcement of the registered order must be requested within thirty days after notice unless the registered order is under Family Code section 159.707, that failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the alleged arrearages, and of the amount of alleged arrearages. Tex. Fam. Code § 159.605(b).
If two or more orders are alleged to be in effect, the notice must also identify the two or more orders and the order alleged to be controlling and the consolidated arrears, if any. The notice must also notify the nonregistering party of the right to a determination of which is the controlling order, state that the procedures pertaining to contesting the validity or enforcement of the registered order also apply to the determination of which order is controlling, and state that failure to timely contest the validity or enforcement of the order alleged to be the controlling order may result in confirmation that the order is the controlling order. Tex. Fam. Code § 159.605(c).
On registration of an income-withholding order for enforcement, the support enforcement agency or the court shall notify the obligor’s employer under Family Code chapter 158. Tex. Fam. Code § 159.605(d).
Procedure to Contest Validity or Enforcement of Registered Support Order: A nonregistering party seeking to contest the validity or enforcement of a registered support order in Texas shall request a hearing within the time required by section 159.605 (thirty days after notice of the registration or as provided by Family Code section 159.707). The nonregistering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages under Family Code section 159.607. Tex. Fam. Code § 159.606(a).
If the nonregistering party fails to contest the validity or enforcement of the registered support order in a timely manner, the order is confirmed by operation of law. Tex. Fam. Code § 159.606(b).
If a nonregistering party requests a hearing to contest the validity or enforcement of the registered support order, the registering court shall schedule the matter for hearing and give notice to the parties of the date, time, and place of the hearing. Tex. Fam. Code § 159.606(c).
Contest of Registration or Enforcement: A party contesting the validity or enforcement of a registered support order or seeking to vacate the registration has the burden of proving one or more of the following defenses:
1.The issuing court lacked personal jurisdiction over the contesting party.
2.The order was obtained by fraud.
3.The order has been vacated, suspended, or modified by a later order.
4.The issuing tribunal has stayed the order pending appeal.
5.There is a defense under Texas law to the remedy sought.
6.Full or partial payment has been made.
7.The statute of limitation under Family Code section 159.604 precludes enforcement of some or all of the alleged arrearages.
8.The alleged controlling order is not the controlling order.
The court must apply the requirements of full faith and credit to the issuing state’s determination of personal jurisdiction over the contesting party. In re T.B., No. 07-10-00377-CV, 2012 WL 751950, at *5 (Tex. App.—Amarillo Mar. 8, 2012, pet. denied) (mem. op.).
If a party presents evidence establishing a full or partial defense under section 159.607(a), a court may stay enforcement of the registered support order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders. An uncontested portion of the registered support order may be enforced by all remedies available under Texas law. Tex. Fam. Code § 159.607(b).
If the contesting party does not establish a defense to the validity or enforcement of the registered support order under section 159.607(a), the registering court shall issue an order confirming the order. Tex. Fam. Code § 159.607(c). In In re G.L.A., 195 S.W.3d 787 (Tex. App.—Beaumont 2006, pet. denied), the trial court abused its discretion in declining to enforce a registered order of another state based on the common-law doctrine of forum non conveniens. Unlike the UCCJEA, UIFSA does not contain a forum non conveniens provision. Nevertheless, the appellate court assumed without deciding that the forum non conveniens doctrine may apply in some child support enforcement proceedings.
Choice of Law: The law of the issuing state or foreign country governs the nature, extent, amount, and duration of current payments under a registered support order, the computation and payment of arrearages and accrual of interest on the arrearages under the support order, and the existence and satisfaction of other obligations under the support order. After a tribunal of Texas or another state determines which is the controlling order and issues an order consolidating any arrears, the Texas court must prospectively apply the law of the state or foreign country that issued the controlling order, including that state’s or country’s law on interest on arrears, on current and future support, and on consolidated arrears. Tex. Fam. Code § 159.604(a), (d).
In a proceeding for arrears under a registered support order, the statute of limitations of Texas or of the issuing state or foreign country, whichever is longer, applies. Tex. Fam. Code § 159.604(b). See In re B.C., 52 S.W.3d 926, 928 (Tex. App.—Beaumont 2001, no pet.); see also Attorney General v. Litten, 999 S.W.2d 74, 78 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (trial court abused discretion in refusing to take judicial notice of Missouri’s statute of limitations based on certified copy of Missouri statute).
A responding Texas court must apply Texas enforcement procedures and remedies to enforce current support and collect arrears and interest due on a support order of another state or a foreign country registered in Texas. Tex. Fam. Code § 159.604(c).
Confirmed Order: Confirmation of a registered support order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration. Tex. Fam. Code § 159.608.
§ 43.43Modification of Support Order after Registration
The procedures regarding registration and contest of a child support order registered for modification are the same as those for an order registered for enforcement only (see section 43.42 above). An order may also be registered for both enforcement and modification. See Tex. Fam. Code § 159.609. Special procedures for modification of foreign support orders are provided in Family Code sections 159.615 and 159.711. See Tex. Fam. Code §§ 159.615, 159.711.
Effect of Registration for Modification: A Texas court may enforce a child support order of another state registered for purposes of modification in the same manner as if the order had been issued by a Texas court, but the registered support order may be modified only if the requirements of Family Code section 159.611 or 159.613 have been met. Tex. Fam. Code § 159.610.
Modification of Child Support Order of Another State: If Family Code section 159.613 does not apply, a Texas court may modify a child support order issued in another state that is registered in Texas if, after notice and hearing, the court finds either (1) that the child, the obligee who is an individual, and the obligor do not reside in the issuing state, a petitioner who is a nonresident of Texas seeks modification, and the respondent is subject to the personal jurisdiction of the Texas court or (2) that the child resides in Texas, or a party who is an individual is subject to the personal jurisdiction of the Texas court, and all the parties who are individuals have filed consents in a record in the issuing tribunal for a Texas court to modify the support order and assume continuing, exclusive jurisdiction. Tex. Fam. Code § 159.611(a); see In re Henderson, 982 S.W.2d 566, 567 (Tex. App.—Amarillo 1998, no pet.) (Texas court could not modify child support provisions of Oklahoma decree because obligor remained resident of Oklahoma).
There is no particular form in which consent for a Texas court to assume jurisdiction to modify another state’s support order must be made. Kendall v. Kendall, 340 S.W.3d 483 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The parties effectively consented to the Texas court’s exercise of jurisdiction to modify an agreed New York order where that order stated that “except for issues regarding equitable distribution, all future questions concerning child support, maintenance, enforcement, interpretation or modification of this Judgment of Divorce shall be referred to the appropriate Court in the State of Texas where the Defendant and the children of the parties reside.” Kendall, 340 S.W.3d at 502.
Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a Texas court, and the order may be enforced and satisfied in the same manner. Tex. Fam. Code § 159.611(b).
A Texas court may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the support obligation. If multiple tribunals have issued orders for the same obligor and same child, the order that controls and must be so recognized under section 159.207 establishes the aspects of the order that are nonmodifiable. Tex. Fam. Code § 159.611(c).
In a proceeding to modify a child support order, the law of the state issuing the initial controlling order governs the duration of the support obligation. The obligor’s fulfillment of the support duty established by that order precludes imposition of a further obligation of support by a Texas court. Tex. Fam. Code § 159.611(d). That is, the initial controlling order may be modified and replaced by a new controlling order, but the duration of the child support obligation is fixed by the initial order.
On issuance of an order by a Texas court modifying a child support order issued in another state, the Texas court becomes the court of continuing, exclusive jurisdiction. Tex. Fam. Code § 159.611(e). Notwithstanding the foregoing provisions of section 159.611 and those of Family Code section 159.201(b), a Texas court retains jurisdiction to modify an order issued by a Texas court if one party resides in another state and the other party resides outside the United States. Tex. Fam. Code § 159.611(f).
If all the individual parties reside in Texas and the child does not reside in the issuing state, a Texas court has jurisdiction to register the issuing state’s order for enforcement or modification. In such a case (which is essentially an intrastate matter), Texas procedural and substantive law apply. However, only certain provisions of UIFSA apply. The provisions concerning jurisdiction, general provisions, and enforcement and modification apply (Family Code sections 159.101–.211 and 159.601–.616), but certain procedural provisions do not apply, including those dealing with establishment of support orders and determination of parentage (Family Code sections 159.301–.507 and 159.701–.802). Tex. Fam. Code § 159.613.
Within thirty days after issuance of a modified child support order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier order and in each tribunal in which the party knows the earlier order has been registered. A party who obtains the order and fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the modified order of the new tribunal having continuing, exclusive jurisdiction. Tex. Fam. Code § 159.614.
Modification of Child Support Order of Foreign Country: Except as otherwise provided by Family Code section 159.711 (see section 43.45 below), if a foreign country lacks or refuses to exercise jurisdiction to modify its child support order pursuant to its laws, a Texas court may assume jurisdiction to modify the child support order and bind all individuals subject to the personal jurisdiction of the Texas court regardless of whether the consent to modification otherwise required of the individual under Family Code section 159.611 has been given and regardless of the residence of the movant. An order issued by a Texas court modifying a foreign child support order under these circumstances is the controlling order. Tex. Fam. Code § 159.615.
Registration of Foreign Child Support Order for Modification: A party or support enforcement agency that seeks to modify, or to modify and enforce, a foreign child support order not under the Convention may register the order in Texas under the provisions of Family Code sections 159.601 through 159.608 if the order has not been registered. A petition for modification, which must specify the grounds for modification, may be filed at the same time as a request for registration or at another time. Tex. Fam. Code § 159.616.
§ 43.44Recognition of Order Modified in Another State
If a child support order of a Texas court is modified by a tribunal of another state that assumed jurisdiction under UIFSA, a Texas court may enforce the order that was modified only as to arrears and interest accruing before the modification, may provide appropriate relief for violations of the order that occurred before the effective date of the modification, and shall recognize the modifying order of the other state, on registration, for the purpose of enforcement. Tex. Fam. Code § 159.612.
§ 43.45Support Proceeding under Convention
The provisions discussed below, set out in subchapter H of chapter 159 of the Family Code, apply only to a support proceeding under the Hague Maintenance Convention. If a provision in subchapter H is inconsistent with subchapters B through G of chapter 159, subchapter H controls. See Tex. Fam. Code § 159.702.
Definitions: Family Code section 159.701 contains several definitions pertinent to subchapter H:
“Application” means a request under the Convention by an obligee or obligor, or on behalf of a child, made through a central authority for assistance from another central authority.
“Central authority” means the entity designated by the United States or a foreign country described in Code section 159.102(5)(D) to perform the functions specified in the Convention.
“Convention support order” means a support order of a tribunal of a foreign country described in Code section 159.102(5)(D).
“Direct request” means a petition filed by an individual in a Texas court in a proceeding involving an obligee, obligor, or child residing outside the United States.
“Foreign central authority” means the entity designated by a foreign country described in Code section 159.102(5)(D) to perform the functions specified in the Convention.
“Foreign support agreement” means an agreement for support in a record that (1) is enforceable as a support order in the country of origin; (2) has been formally drawn up or registered as an authentic instrument by a foreign tribunal or authenticated by, or concluded, registered, or filed with a foreign tribunal; and (3) may be reviewed and modified by a foreign tribunal. The term includes a maintenance arrangement or authentic instrument under the Convention.
“United States central authority” means the secretary of the United States Department of Health and Human Services.
The office of the attorney general of Texas (hereinafter “OAG”) is the agency designated by the United States central authority to perform specific functions under the Convention. Tex. Fam. Code § 159.703.
A record filed with a Texas court under subchapter H must be in the original language. If it is not in English, it must be accompanied by an English translation. Tex. Fam. Code § 159.713.
Initiation of Proceeding by OAG: In support proceedings under the Convention, the OAG shall transmit and receive applications and initiate or facilitate the institution of a proceeding regarding an application in a Texas court. Tex. Fam. Code § 159.704(a).
These support proceedings are available to an obligee: (1) recognition or recognition and enforcement of a foreign support order; (2) enforcement of a support order issued or recognized in Texas; (3) establishment of a support order if there is no existing order, including, if necessary, determination of parentage of a child; (4) establishment of a support order if recognition of a foreign support order is refused under Code section 159.708(b)(2), (4), or (9); (5) modification of a support order of a Texas court; and (6) modification of a support order of a tribunal of another state or a foreign country. Tex. Fam. Code § 159.704(b).
These support proceedings are available to an obligor against which there is an existing support order: (1) recognition of an order suspending or limiting enforcement of an existing support order of a Texas court, (2) modification of a support order of a Texas court, and (3) modification of a support order of a tribunal of another state or a foreign country. Tex. Fam. Code § 159.704(c).
A Texas court may not require security, bond, or deposit to guarantee payment of costs and expenses in proceedings under the Convention. Tex. Fam. Code § 159.704(d).
Direct Request: A petitioner may file a direct request seeking establishment or modification of a support order or determination of parentage of a child; Texas law applies to the proceeding. Tex. Fam. Code § 159.705(a).
A petitioner may file a direct request seeking recognition and enforcement of a support order or support agreement. Code sections 159.706 through 159.713 apply to the proceeding. Tex. Fam. Code § 159.705(b). A security, bond, or deposit is not required to guarantee the payment of costs and expenses in such a proceeding, and an obligee or obligor that has benefited from free legal assistance in the issuing country is entitled to benefit, at least to the same extent, from any free legal assistance provided for by Texas law under the same circumstances. Tex. Fam. Code § 159.705(c). Subchapter H does not prevent the application of Texas laws that provide simplified, more expeditious rules regarding a direct request for recognition and enforcement of a foreign support order or foreign support agreement. Tex. Fam. Code § 159.705(e).
A petitioner filing a direct request is not entitled to assistance from the office of the attorney general. Tex. Fam. Code § 159.705(d).
Registration: Except as otherwise provided in subchapter H, orders are to be registered as provided in subchapter G of the Code. See Tex. Fam. Code § 159.706(a). A request for registration of a Convention support order may seek recognition and partial enforcement of the order. Tex. Fam. Code § 159.706(c).
Supporting materials required to be submitted differ from those required in sections 159.311 and 159.602(a) of the Code for non-Convention proceedings. Notwithstanding those sections, a request for registration of a Convention support order must be accompanied by (1) the complete text of the support order or an abstract or extract of the support order drawn up by the issuing foreign tribunal, which may be in the form recommended by the Hague Conference on Private International Law; (2) a record stating that the support order is enforceable in the issuing country; (3) if the respondent did not appear and was not represented in the proceedings in the issuing country, a record attesting, as appropriate, either that the respondent had proper notice of the proceedings and an opportunity to be heard or that the respondent had proper notice of the support order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal; (4) a record showing the amount of arrears, if any, and the date the amount was calculated; (5) a record showing a requirement for automatic adjustment of the amount of support, if any, and the information necessary to make the appropriate calculations; and (6) if necessary, a record showing the extent to which the applicant received free legal assistance in the issuing country. Tex. Fam. Code § 159.706(b).
A Texas court may vacate the registration of a Convention support order without the filing of a contest under Code section 159.707 only if, acting on its own motion, the court finds that recognition and enforcement of the order would be manifestly incompatible with public policy. Tex. Fam. Code § 159.706(d).
The court shall promptly notify the parties of the registration or the order vacating the registration of a Convention support order. Tex. Fam. Code § 159.706(e).
Contest: Except as otherwise provided in subchapter H, Code sections 159.605 through 159.608 apply to a contest of a registered Convention support order. Tex. Fam. Code § 159.707(a).
A party contesting a registered Convention support order must file a contest not later than thirty days after notice of the registration. If the contesting party does not reside in the United States, the contest must be filed not later than sixty days after notice of the registration. Tex. Fam. Code § 159.707(b). If the nonregistering party fails to contest the registered Convention support order by the specified time, the order is enforceable. Tex. Fam. Code § 159.707(c).
A contest of a registered Convention support order may be based only on grounds set forth in section 159.708. The contesting party bears the burden of proof. Tex. Fam. Code § 159.707(d). The Texas court is bound by the findings of fact on which the foreign tribunal based its jurisdiction and may not review the merits of the order, and it must promptly notify the parties of its decision. Tex. Fam. Code § 159.707(e), (f).
A challenge or appeal, if any, does not stay the enforcement of a Convention support order unless there are exceptional circumstances. Tex. Fam. Code § 159.707(g).
Recognition and Enforcement: A Texas court must recognize and enforce a registered Convention support order except on the following grounds for refusal:
1.Recognition and enforcement of the order is manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process, which include notice and an opportunity to be heard.
2.The issuing tribunal lacked personal jurisdiction consistent with Code section 159.201.
3.The order is not enforceable in the issuing country.
4.The order was obtained by fraud in connection with a matter of procedure.
5.A record transmitted in accordance with Code section 159.706 lacks authenticity or integrity.
6.A proceeding between the same parties and having the same purpose is pending before a Texas court, and that proceeding was the first to be filed.
7.The order is incompatible with a more recent support order involving the same parties and having the same purpose if the more recent support order is entitled to recognition and enforcement under Code chapter 159 in Texas.
8.Payment, to the extent alleged arrears have been paid in whole or in part.
9.In a case in which the respondent neither appeared nor was represented in the proceeding in the issuing foreign country (a) if the law of that country provides for prior notice of proceedings, the respondent did not have proper notice of the proceedings and an opportunity to be heard or (b) if the law of that country does not provide for prior notice of the proceedings, the respondent did not have proper notice of the order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal.
10.The order was made in violation of Code section 159.711.
Tex. Fam. Code § 159.708(a), (b).
If a Texas court does not recognize a Convention support order on grounds listed in item 2, 4, or 9 above, the court may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new Convention support order and, if the application for recognition and enforcement was received under Code section 159.704, the OAG shall take all appropriate measures to request a child support order for the obligee. See Tex. Fam. Code § 159.708(c).
If a Texas court does not recognize and enforce a Convention support order in its entirety, it must enforce any severable part of the order. An application or direct request may seek recognition and partial enforcement. Tex. Fam. Code § 159.709.
Foreign Support Agreement: Absent specified grounds, a Texas court must recognize and enforce a foreign support agreement registered Texas. See Tex. Fam. Code § 159.710(a). An application or direct request for recognition and enforcement of a foreign support agreement must be accompanied by the complete text of the foreign support agreement and a record stating that the foreign support agreement is enforceable as an order of support in the issuing country. Tex. Fam. Code § 159.710(b).
A Texas court may vacate the registration of a foreign support agreement only if, acting on its own motion, the court finds that recognition and enforcement would be manifestly incompatible with public policy. Tex. Fam. Code § 159.710(c). In a contest of a foreign support agreement, a Texas court may refuse recognition and enforcement of the agreement if it finds (1) recognition and enforcement of the agreement is manifestly incompatible with public policy; (2) the agreement was obtained by fraud or falsification; (3) the agreement is incompatible with a support order involving the same parties and having the same purpose in Texas, another state, or a foreign country if the support order is entitled to recognition and enforcement under Code chapter 159 in Texas; or (4) the record submitted with the application or request stating that the agreement is enforceable as a support order in the issuing country lacks authenticity or integrity. Tex. Fam. Code § 159.710(d).
A proceeding for recognition and enforcement of a foreign support agreement must be suspended while a challenge to or appeal of the agreement is pending before a tribunal of another state or a foreign country. Tex. Fam. Code § 159.710(e).
Modification: A Texas court may not modify a Convention child support order if the obligee remains a resident of the foreign country where the support order was issued unless (1) the obligee submits to the jurisdiction of a Texas court, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity or (2) the foreign tribunal lacks or refuses to exercise jurisdiction to modify its support order or issue a new support order. If a Texas court does not modify a Convention child support order because the order is not recognized in Texas, Code section 159.708(c) applies. Tex. Fam. Code § 159.711.
§ 43.46Continuing, Exclusive Jurisdiction to Modify Spousal Support Order
A Texas court that issues a spousal support order consistent with Texas law has continuing, exclusive jurisdiction to modify the order throughout the existence of the support obligation. A Texas court may not modify the spousal support order of another state or a foreign country having continuing, exclusive jurisdiction over that order under the laws of that state or foreign country. A Texas court with continuing, exclusive jurisdiction over a spousal support order may request a tribunal of another state to enforce the Texas spousal support order and may enforce or modify its own order at the request of another state. Tex. Fam. Code § 159.211.
[Sections 43.47 through 43.50 are reserved for expansion.]
IV. Full Faith and Credit for Child Support Orders Act
In 1994 Congress passed the Full Faith and Credit for Child Support Orders Act (FFCCSOA), codified at 28 U.S.C. § 1738B. The purpose of the Act is to facilitate the enforcement of child support orders among the states and avoid jurisdictional competition and conflict among state courts in establishing child support orders. Once a state exercises jurisdiction consistently with the jurisdictional prerequisites of the Act, each state must give full faith and credit to the sister-state child support order. In re G.L.A., 195 S.W.3d 787 (Tex. App.—Beaumont 2006, pet. denied). The FFCCSOA sets out general policy dictates and the Uniform Interstate Family Support Act contains the details to implement the policy. Texas law requires that a court must seek to harmonize the FFCCSOA, the federal Parental Kidnapping Prevention Act of 1980, and the provisions of the Texas Family Code. See Tex. Fam. Code § 102.012(d).
Several key definitions pertinent to the Act are contained in 28 U.S.C. § 1738B(b), including the following:
“Child” means a person under eighteen years of age or a person eighteen or older with respect to whom a child support order has been issued under a state’s law.
“Child’s state” means the state in which a child resides.
“Child’s home state” means the state in which a child lived with a parent or a person acting as parent for at least six consecutive months immediately preceding the time a pleading for support is filed and, if the child is less than six months old, the state in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month period.
“Child support” means a payment of money, continuing support, or arrearages or the provision of a benefit (including payment of health insurance, child care, and educational expenses) for the support of a child.
“Child support order” means a judgment, decree, or order of a court requiring the payment of child support in periodic amounts or in a lump sum, including a permanent or temporary order and an initial order or modification of an order.
“Contestant” means a person, including a parent, who claims a right to receive child support, is a party to a proceeding that may result in issuance of a child support order, or is under a child support order. It also includes a state or political subdivision to which the right to obtain child support has been assigned.
“Modification” means a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order.
§ 43.53Determining If Sister State Had Jurisdiction
The Act does not confer jurisdiction on a state but provides for recognition of child support orders rendered under the jurisdictional prerequisites set forth in the Act.
A child support order is made consistently with the Act if the court that makes the order has both subject-matter jurisdiction and personal jurisdiction over the contestants, under the law of the state in which the court is located and under the Act, and the contestants have been given reasonable notice and opportunity to be heard. 28 U.S.C. § 1738B(c).
§ 43.54Continuing Jurisdiction
Under the Act, a court that renders a child support order consistently with the jurisdictional provisions of the Act has continuing, exclusive jurisdiction over the order if the state in which the court is located is the child’s state or the residence of any individual contestant or the parties have consented in a record or open court that the state tribunal may continue to exercise jurisdiction to modify its order, unless the court of another state has modified the order in accordance with the provisions of the Act. 28 U.S.C. § 1738B(d).
A court of a state may modify a child support order issued by a court of another state if the court has jurisdiction to make such a child support order under section 1738B(i) of the Act and either the court of the other state no longer has continuing, exclusive jurisdiction of the order because that state is no longer the child’s state or any individual contestant’s residence and the parties have not consented in a record or open court that the tribunal of the other state may continue to exercise jurisdiction to modify its order or each individual contestant has filed written consent with the state of continuing, exclusive jurisdiction for a court of another state to modify the order and assume continuing, exclusive jurisdiction over the order. 28 U.S.C. § 1738B(e).
§ 43.56Enforcement of Modified Orders
A court of a state that no longer has continuing, exclusive jurisdiction of a child support order may enforce the order with respect to nonmodifiable obligations and unsatisfied obligations that accrued before the modification of the order. 28 U.S.C. § 1738B(g).
§ 43.57Recognition of Child Support Orders
The Act provides rules by which a court must determine which order to recognize for purposes of continuing, exclusive jurisdiction. 28 U.S.C. § 1738B(f).
If only one court has issued a child support order, that court’s order must be recognized. If two or more courts have issued child support orders for the same obligor and child and only one of the courts would have continuing, exclusive jurisdiction under the Act, that court’s order must be recognized. If two or more courts have issued such orders and more than one of the courts would have continuing, exclusive jurisdiction under the Act, an order issued by a court in the child’s current home state must be recognized, but if no order has been issued in that state, the order most recently issued must be recognized. If two or more courts have issued such orders and none of the courts would have continuing, exclusive jurisdiction under the Act, a court having jurisdiction over the parties shall issue a child support order, which must be recognized. The court that has issued an order recognized under this provision is the court having continuing, exclusive jurisdiction under section 1738B(d). 28 U.S.C. § 1738B(f).
In a proceeding to establish, modify, or enforce a child support order, the forum state’s law generally applies. However, the law of the state that issued an order applies to its interpretation. A state cannot deny full faith and credit to another state’s judgment or final order solely on the ground that it offends the public policy of the state where it is sought to be enforced. Knighton v. International Business Machines Corp., 856 S.W.2d 206, 209 (Tex. App.—Houston [1st Dist.] 1993, writ denied); Daus v. Daus, No. 05-13-00060-CV, 2014 WL 2109379, at *3 (Tex. App.—Dallas May 14, 2014, pet. denied) (mem. op.) (confirmation of order from foreign court may result in garnishment of Texas resident’s wages even though Texas court could not issue same substantive order against Texas resident. Obligee did not seek enforcement from Texas court, but only that Texas give full faith and credit to the order and allow garnishment under other state’s laws). Further, in an action to enforce an arrearage, the statute of limitations of the forum state or the issuing state, whichever provides the longer period of limitation, applies. 28 U.S.C. § 1738B(h).
[Sections 43.59 and 43.60 are reserved for expansion.]
The following websites contain information relating to the topic of this chapter:
List of countries that have adapted Hague Maintenance Convention (§ 43.31)
www.hcch.net/en/instruments/conventions/status-table/?cid=131