In divorce cases, situations come up where the custody of a child is at issue and the case involves a child being taken out of the state or out of the country. What can be done is governed by the Uniform Child Custody Jurisdiction and Enforcement Act under Chapter 152.101 of the Texas Family Code.
What does the act mean?
(1) “Abandoned” means left without provision for reasonable and necessary care or supervision.
(2) “Child” means an individual who has not attained 18 years of age.
(3) “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 another monetary obligation of an individual.
(4) “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.
(5) “Commencement” means the filing of the first pleading in a proceeding.
(6) “Court” means an entity authorized under the law of a state to establish, enforce, or modify a child custody determination.
(7) “Home state” means the state in which a 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 a person acting as a parent is part of the period.
(8) “Initial determination” means the first child custody determination concerning a particular child.
(9) “Issuing court” means the court that makes a child custody determination for which enforcement is sought under this chapter.
(10) “Issuing state” means the state in which a child custody determination is made.
(11) “Legal custody” means the managing conservatorship of a child.
(12) “Modification” means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.
(13) “Person acting as a parent” means a person, other than a parent, who:
(A) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and
(B) has been awarded legal custody by a court or claims a right to legal custody under the law of this state.
(14) “Physical custody” means the physical care and supervision of a child.
(15) “Tribe” means an Indian tribe or band, or Alaskan Native village, that is recognized by federal law or formally acknowledged by a state.
(16) “Visitation” means the possession of or access to a child.
(17) “Warrant” means an order issued by a court authorizing law enforcement officers to take physical custody of a child.
What is the child is taken to another country?
A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this provisions. Except as otherwise provided in Subsection (c), a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced under Subchapter D. A court of this state need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.
A record of all of the proceedings under this chapter relating to a child custody determination made in a foreign country or to the enforcement of an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction shall be made by a court reporter or as provided by Section 201.009 of the Texas Family Code.
The case law illustrates some of the cases that involve the foregoing situations. In re Y.M.A., 111 S.W.3d 790 (Tex. App.—Fort Worth 2003, no pet.). Egypt was a child’s home state for purposes of the UCCJEA. Thus, the Egyptian court had jurisdiction over a child custody proceeding when, before the husband’s filing for divorce, the wife filed suit seeking custody in Egypt; the husband was served, but did not appear; the family lived in Egypt within six months before commencement of the wife’s proceeding; and, after the husband removed the child to Texas, the wife continued to live in Egypt.
In Koester v. Montgomery, 886 S.W.2d 432 (Tex. App.—Houston [14th Dist.] 1994, orig. proceeding). The UCCJA, the precursor to the UCCJEA, applied to foreign proceedings if basic due-process notions of notice were followed. A child custody determination made by a court of this state that had jurisdiction under this chapter binds all persons who have been served in accordance with the laws of this state or notified in accordance with Section 152.108 or who have submitted to the jurisdiction of the court and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.
If a question of existence or exercise of jurisdiction under this chapter is raised in a child custody proceeding, the question, upon request of a party, must be given priority on the calendar and handled expeditiously.
Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process or by the law of the state in which the service is made. Notice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.
Proof of service may be made in the manner prescribed by the law of this state or by the law of the state in which the service is made.
Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.
In Livanos v. Livanos, 333 S.W.3d 868, 876–77 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Under the UCCJEA, before a trial court can make a child custody determination, notice and an opportunity to be heard must be given under the standards of section 152.108. The only mandatory requirement under the UCCJEA is that notice be given in a manner that is reasonably calculated to give actual notice