Questions Presented
The initial question presented is whether this Court has subject matter jurisdiction. If the Court finds that it has subject matter jurisdiction, then the question presented is whether the Court has personal jurisdiction over the Respondent.
Brief Answer
This Court initially obtained subject matter jurisdiction under §152.204 of the Texas Family Code pursuant to the Petitioner’s pleadings and testimony. §152.204 confers subject matter jurisdiction on this Court without a six month residency requirement on the child. The Court has issued final orders stating its reliance on §152.204 for jurisdiction. The Court obtained personal jurisdiction over the Respondent father because he personally appeared in front of the Court, requested, and received relief from the Court prior to a decision being made on his Special Appearance.
Preliminary Facts
The mother and the father are the parents of a child approximately 18 months old, born to them in California. The parties have never been married to each other. The mother and child lived in California until, at least, April 1. The relationship between the parties had deteriorated due to the father’s drug use, paranoia, violence, and threats of violence. By April 30, the mother and child had left California and began residing in Dallas County, Texas.
On May 10, the mother applied for a protective order from this Court and also petitioned the Court for a determination of paternity
An ex-parte protective order was granted on May 10, and after re-setting the hearing due to a clerical error, this Court signed a standard, two year protective order on June 15, for the protection of the mother and child.
On June 30, this Court signed a final order determining paternity between the father and child and awarding the father certain parental rights and duties. That order specifically stated that it is a final order, with jurisdiction coming from §152.204 of the Texas Family Code, and subject to the limitations in §152.204 of the Texas Family Code.
Arguments and Authorities
The Respondent has made a special appearance relying on §152.201 of the Texas Family Code for the proposition that this Court did not have subject matter jurisdiction to issue any orders in this matter. The Respondent’s reliance is misplaced. §152.201 of the Texas Family Codes states as follows:
§ 152.201. Initial Child Custody Jurisdiction
(a) Except as otherwise provided in Section 152.204, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) a court of another state does not have jurisdiction under Subdivision (1) , or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 152.207 or 152.208, and:
(A) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
(3) all courts having jurisdiction under Subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 152.207 or 152.208; or
(4) no court of any other state would have jurisdiction under the criteria specified in Subdivision (1) , (2) , or (3) .
(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
Italics added.
The initial sentence limits this statute to situations in which §152.204 does not apply. This Court’s jurisdiction was specifically invoked under §152.204. Before determining whether this Court has jurisdiction under §152.201, we must first look to determine whether this Court has jurisdiction under §152.204. It states as follows.
§ 152.204. Temporary Emergency Jurisdiction
(a) A court of this state has temporary emergency jurisdiction if the child is present in this state 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.
(b) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Sections 152.201 through 152.203, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 152.201 through 152.203. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Sections 152.201 through 152.203, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.
(c) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under Sections 152.201 through 152.203, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 152.201 through 152.203. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
(d) A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of a state having jurisdiction under Sections 152.201 through 152.203, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to Sections 152.201 through 152.203, upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.
The allegations made by the mother, and testified to in open court, confirm that the child was present in the state at the time the application was made and that it was necessary to protect the child because both the child and the mother were subjected to mistreatment, abuse, and threatened abuse, as defined by the statutes.
A similar situation was analyzed by the Amarillo appellate court. In the case of In re J.C.B., 209 S.W.3d 821 (Tex.App.—Amarillo 2006), the parents were residents of Oklahoma, driving through Texas, when they were arrested on drug charges. “It is undisputed that neither J.C.B. nor his parents were residents of Texas at the time. Nor does anyone dispute that the child’s home state was Oklahoma and that no Oklahoma court declined, in favor of Texas, to exercise its jurisdiction over J.C.B. Thus, it is clear that the trial court’s jurisdiction to make a child custody determination could not be founded upon §152.201 of the Family Code. Yet, that is not true of §152.204.” Id., at 823. The father objected to an order terminating his parental rights based on the fact the child’s home state was Oklahoma, not Texas.
The Court went on to find that the statute requiring a six month residency in Texas did not apply in situations in which the protection of the child was an issue. Id., at 824. The Court also noted that no child custody actions were pending prior to or since the Court assumed emergency jurisdiction. Id. at 824. However, the Court also noted that the final order was not entered until the child had been in Texas for fourteen months, long after Texas became the child’s home state.
Other cases in which the Court declined, or was told to decline jurisdiction, involved situations in which the child was actually residing in another state at the time the original suit was filed. See, In re K.M.P., 03-10-00006-CV (TXCA3) (child’s home state listed as Georgia in the divorce decree), Seligman-Hargis v. Hargis, 186 S.W.3d 582 (Tex.App.-Dallas 2006) (children living in Germany).
The Amarillo Court, prior to the J.C.B. case, decided another case that combined the two issues. In In re Estes, 153 S.W.3d 591 (Tex.App. - Amarillo 2004), the father filed for divorce in Texas while the mother and children were living in Nebraska. He obtained a default temporary order granting him custody of the children, went to Nebraska, and brought the children back to Texas. Shortly thereafter, the mother filed a special appearance in Texas, filed suit in Nebraska, and the father amended his pleadings to invoke the Court’s jurisdiction pursuant to §152.204. Id. at 595. The trial courts of the two states conferred, and they appeared to agree that Nebraska was the appropriate forum, although the Texas court seems to have retained jurisdiction. Id. at 598 and 600. The Amarillo Court agreed with the mother that the trial court did not have jurisdiction originally and vacated the temporary orders originally issued by the trial court granting custody to the father. However, because the children were in Texas at the time the father amended his pleadings, the appellate court let the proceedings continue based on the father’s assertion of jurisdiction from §152.204. Id. at 600.
§152.204 of the Texas Family Code anticipated situations like the present. The conditions subsequent to granting this Court emergency jurisdiction contemplate whether no other court qualified under §§152.201 - 152.203 has sought to make a determination, then this Court’s orders remain in place (section b), when another state’s court has commenced a proceeding, then this Court’s orders remain in place until the other state’s court has time to make a determination (section c), and if a proceeding has been commenced in another state, for this Court to confer with that other state’s court. Taken together, it is important to note that the father in this present case, stated in open court that he had not yet commenced a custody case in California, even though he may have been qualified to do so under California’s statutes. If the father had commenced a case, it would be incumbent upon this Court to confer with the California judge and determine which forum is the most appropriate. See, e.g., In re Marriage of Daulton, No. 10-06-00180-CV (TXCA10) (father moved to Texas from Illinois and mother filed suit almost immediately in Illinois. Illinois court took jurisdiction under its version of §152.201).
The initial question before the Court is whether it has subject matter jurisdiction to make an initial child custody determination. The Respondent asks that the Court rely on §152.201 to find that it lacks subject matter jurisdiction. However, the Petitioner’s pleadings and this Court’s orders refer to §152.204, where a six month residency is not required. Hence, this Court initially obtained and retains subject matter jurisdiction to make a child custody determination.
The next issue is whether this Court obtained personal jurisdiction over the Respondent. A “custody determination” means a court decision providing for the custody of a child, including visitation rights. TEX.FAM.CODE ANN. § 11.52 (Vernon 1986). Unlike adjudications of child support and visitation expense, custody determinations are status adjudications not dependent upon personal jurisdiction over the parents. See Creavin, 773 S.W.2d at 703; Perry, 604 S.W.2d at 313; see also Shaffer v. Heitner, 433 U.S. 186, 208 n. 30, 97 S.Ct. 2569, 2582 n. 30, 53 L.Ed.2d 683 (1977).” In Interest of S.A.V., 837 S.W.2d 80 (Tex. 1992). In that case, the Court was asked to determine whether it had subject matter jurisdiction and personal jurisdiction over the Respondent. The Supreme Court divided the two issues into a status issue and a financial issue, noting that personal jurisdiction for the custody issues was unnecessary, but was necessary to determine child support issues. In the instant case, the Petitioner neither sought nor received a child support award from the Court. The Respondent’s objections to this Court’s personal jurisdiction over him are misplaced.
In addition, the Respondent requested affirmative relief from this Court, thus waiving his objection to personal jurisdiction. See, Liberty Enters., Inc. v. Moore Transp. Co., Inc., 690 S.W.2d 570, 571-72 (Tex.1985) (holding that party waived special appearance by agreeing to trial court’s order reinstating cause of action); see also Shapolsky v. Brewton, 56 S.W.3d 120, 140-41 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (holding that nonresident defendant waived special appearance by having motion for protection and for sanctions heard before court heard and determined special appearance). At the hearing held on September 1, the Respondent was sworn in and offered testimony to the Court. During the course of his testimony, the Respondent claimed that he was concerned that the Petitioner would leave the country with their child and asked the Court for an injunction preventing her from doing so. The Court granted the Respondent’s request and ordered that the parties and children were to remain in either Texas or California.
Conclusion
A clear reading of §152.204 Texas Family Code confers subject matter jurisdiction on this Court, options for the Respondent, and what this Court should do if the Respondent filed suit in California. The Respondent had ample time to respond to this Court’s assertion of jurisdiction and to file a custody proceeding in California, but chose not to.
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