One of the most common questions we get in my office is “where am I able to file for emergency child custody or child custody modification? Usually, if the parties reside in Texas, a court of this state has the jurisdiction to make an initial child custody determination if 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; and, a court of another state does not have jurisdiction, 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 and 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 substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
If all other courts 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 the Texas Family Code or no court of any other state would have jurisdiction, then Texas has the exclusive jurisdictional basis for making a child custody determination by a court of this state. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
What is continuing jurisdiction? Except as otherwise provided in Section 152.204 of the Texas Family Code, a court of this state which has made a child custody determination consistent with Section 152.201 or 152.203 of the Texas Family Code has exclusive continuing jurisdiction over the determination until: (1) a court of this state 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 this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or (2) a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 152.201 of the Texas Family Code.
What about the jurisdiction to modify? Except as otherwise provided in Section 152.204 of the Texas Family Code, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination and: (1) the court of the other state determines it no longer has exclusive continuing jurisdiction or that a court of this state would be a more convenient forum; or (2) a court of this state 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.
How can I get temporary emergency custody jurisdiction in Texas? 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; and, if there is no previous child custody determination that is entitled to be enforced and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Sections 152.201 through 152.203 of the Texas Family Code, 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 of the Texas Family Code.
If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction, a child custody determination becomes a final determination, if it so provides and this state becomes the home state of the child. If there is a previous child custody determination that is entitled to be enforced, or a child custody proceeding has been commenced in a court of a state having jurisdiction, 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. 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. A court of this state which has been asked to make a child custody determination, 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, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction, 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 best course of action any time you have a case where modification of child custody or emergency modification of a child custody order is necessary requires that an experienced family law attorney get involved with your situation to avoid jurisdictional issues that may negatively affect your case.