Transcript Tips and Traps to Avoid in Multi
Harry L. Tindall and Angela Pence England Tindall & England, P.C.
HBA Family Law Section Presentation 9/1/2010
Uniform Interstate Family Support Act (UIFSA) Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) Uniform Parentage Act (UPA) Divorce Jurisdiction and Venue HBA Family Law Section Presentation 9/1/2010
Divorce Jurisdiction 6.301 General Rule critical for status adjudication 6.305 Jurisdiction over Nonresident critical for property division; fees 6.308 Exercising Partial Jurisdiction jurisdiction is appropriate.
lack of full jurisdiction does not preclude exercise of jurisdiction over that portion of case where 6.406 Mandatory Joinder SAPCR must be joined with Divorce HBA Family Law Section Presentation 9/1/2010
SAPCR 102.011 Acquiring Jurisdiction over Nonresident-
critical for support
102.012 Exercising Partial Jurisdiction-
la ck of full jurisdiction does not preclude exercise of jurisdiction over that portion of case where jurisdiction is appropriate HBA Family Law Section Presentation 9/1/2010
Child Custody Jurisdiction 152.201 Initial Jurisdiction critical for custody 152.202 Exclusive Continuing Jurisdiction 152.203 Jurisdiction to Modify 152.204 Emergency Jurisdiction 152.207 Inconvenient Forum court can decline jurisdiction 152.208 Jurisdiction declined by Reason of Conduct HBA Family Law Section Presentation 9/1/2010
Continuing, Exclusive Jurisdiction; Transfer 155.001 Acquiring Continuing, Exclusive Jurisdiction necessity of final order 155.002 Retaining Continuing, Exclusive Jurisdiction 155.003 Exercise of Continuing, Exclusive Jurisdiction 155.004 Loss of Continuing, Exclusive Jurisdiction 155.005 Jurisdiction pending Transfer 155.301 Authority to Transfer HBA Family Law Section Presentation 9/1/2010
H & W separate in Missouri. H moves to Texas, leaving W and kids in Missouri. H files for divorce in Texas 1 year later, and the parties ultimately agree to a division of property, support and custody provisions.
What can Texas court do?
Can parties stipulate to jurisdiction?
HBA Family Law Section Presentation 9/1/2010
Divorce Jurisdiction: Court can grant the divorce and enter an agreed property division if Mom doesn’t challenge court’s jurisdiction over her. Support Jurisdiction: Texas court has jurisdiction to order Dad to pay child support since it has personal jurisdiction over him and her by consent under UIFSA §159.201.
Custody Jurisdiction: No jurisdiction under UCCJEA—parties can not agree to confer jurisdiction under the Act. Missouri is home state under § 152.201 HBA Family Law Section Presentation 9/1/2010
Parties own property and file taxes in Texas but also own property in California. Child attends school in California. Parents commute back and forth. Husband files for divorce and orders for child support in Texas. Ten days later, Wife files for divorce, child support, custody and alimony in California. Who prevails?
Competing Jurisdiction HBA Family Law Section Presentation 9/1/2010
Divorce Jurisdiction: If can establish Texas as domicile for parties, Texas can grant the divorce and divide property of parties under 6.301 and/or 6.305. Support Jurisdiction: Section 159.204 covers UIFSA Simultaneous Proceedings and California may be the proper court if Mom timely challenges Texas jurisdiction and California is the home state of the children.
Custody Jurisdiction: Clearly California is the home state of the child under UCCJEA.
HBA Family Law Section Presentation 9/1/2010
Parties New York divorce decree provides for child support through age 21. Mom and kid move to Pennsylvania. Dad relocates to Texas. Mom wants to increase child support now that child is 19 and heading to college.
Texas Modification of Out of State Order HBA Family Law Section Presentation 9/1/2010
UIFSA Section 159.611 Modification of Child Support Order of Another State Texas can modify a registered order of another state If obligor, obligee, and child no longer reside in issuing state And nonresident seeks modification against respondent who is subject to personal jurisdiction in Texas (or by consent) Law of state that issued controlling order (New York) applies as to duration of the obligation of support HBA Family Law Section Presentation 9/1/2010
In a mediated settlement agreement and ultimate final order, parties agree that all future modifications will be heard in Harris County, Texas. Mom and child move to Aspen. Father moves to Palm Springs.
Where can Mom file modification of support? Where can a modification of custody be filed?
Stipulations to Texas HBA Family Law Section Presentation 9/1/2010
Modification of Support: Texas UIFSA 159.205: Texas can continue to exercise continuing, exclusive jurisdiction over its order by consent of the parties UIFSA 611: Mom can also file suit in California to modify a registered Texas order there if Dad doesn’t challenge Modification of Custody: Texas court no longer has exclusive continuing jurisdiction under UCCJEA 152.202 when neither the child nor the parents live in Texas. Can not confer UCCJEA jurisdiction by agreement of the parties.
HBA Family Law Section Presentation 9/1/2010
Parties divorce in Texas and both leave state. H lives in Florida and W and child live in New Mexico. Ten years later, Mom and child move back to Texas. Mom files suit to increase support in Texas. Dad says must be heard in Florida.
Child Support HBA Family Law Section Presentation 9/1/2010
UIFSA 159.205
Continuing, Exclusive To Modify Child Support Order Texas court has and shall exercise continuing, exclusive jurisdiction to modify its support order if AT THE TIME THE REQUEST FOR MODIFICATION IS FILED, Texas is the state of residence of the obligor, the obligee, or the child.
HBA Family Law Section Presentation 9/1/2010
Parties divorce in Harris County. Son to live with Dad; Daughter to live with Mom. Mom moves to Oklahoma and Dad moves to Arizona. Where are future modifications?
Multiple kids in Multiple States HBA Family Law Section Presentation 9/1/2010
Modification of Custody/Possession & Access Son: Since no one still in issuing state, Arizona Daughter: Since no one still in issuing state, Oklahoma Modification of Child Support/Medical Support: Son: Since no one still in issuing state, Texas by consent or Arizona (because that’s where Dad’s pockets are) Daughter: are) Since no one still in issuing state, Texas by consent or Oklahoma (because that’s where Mom’s pockets HBA Family Law Section Presentation 9/1/2010
Man and woman conceive a child while visiting Texas. Child is born in Illinois, where Mom and Dad both lived. Mom moves to Texas for a job, leaving child with her parents. Two years later, she wants to file a parentage suit in Texas. Can she?
3 Rules for Jurisdiction HBA Family Law Section Presentation 9/1/2010
Parentage: Texas court has personal jurisdiction under 159.201 since had sex in the state and child conceived here Support: Texas court has personal jurisdiction under 159.201 since had sex in the state and child conceived here Custody/Possession and Access: of child is Illinois; Initial orders to be entered there Home state HBA Family Law Section Presentation 9/1/2010
Man and Woman conceive a child in New York. Mom moves to Texas and gives birth. When child is 5 months old, Mom files a parentage and support in New York. Two days later, Dad files for parentage, support, and possession in Texas. Which court decides?
Competing Jurisdiction HBA Family Law Section Presentation 9/1/2010
Parentage: Both courts have personal jurisdiction under 159.201 since had sex in New York and Dad lives there; Texas because Dad voluntarily consented and Mom lives there Support: Both courts have personal jurisdiction under 159.201 since had sex in New York and Dad lives there; Texas because Dad voluntarily consented and Mom lives there Custody/Possession and Access: York Home state of child is Texas under caselaw (even if not yet 6 months) and no significant connection with New HBA Family Law Section Presentation 9/1/2010
Husband and Wife separate in Arkansas with one child. Mom leaves child with parents in Oklahoma and comes to Houston where she gives birth to nonmarital child. Mom seeks paternity of child born in Houston, but there is no personal jurisdiction over Husband.
What can be done?
HBA Family Law Section Presentation 9/1/2010
Lack of jurisdiction over one individual does not preclude the court from making an adjudication of parentage binding on another individual over whom the court has personal jurisdiction.
Even though Texas court doesn’t have personal jurisdiction over presumed Dad (husband) can adjudicate parentage of any alleged dad over which it does have personal jurisdiction.
HBA Family Law Section Presentation 9/1/2010
Parties get married in New York and decide to move to Texas, dropping their twins born during the marriage off at her parents in Oklahoma.
After living in Texas, they separate. Dad moves to Arkansas and Mom stays in Texas. 3 years later, Mom files for divorce in Texas. Which court can do what?
Different Courts for Different Parts HBA Family Law Section Presentation 9/1/2010
Divorce: Can grant a status adjudication, terminating the marriage Division of Property: Can’t divide property without personal jurisdiction Child Support: Can’t order support without personal jurisdiction—go to Arkansas or New York Custody/Possession and Access: determination Have to go to home state to get orders here since initial HBA Family Law Section Presentation 9/1/2010
Key to successful practice of family law Key to getting a passing grade on family law board certification Key to achieving favorable results for your client The rules are complicated and take time to master. HBA Family Law Section Presentation 9/1/2010
Harry L. Tindall & Angela Pence England Tindall & England, P.C.
HBA Family Law Section Presentation 9/1/2010