1-1 By: Thompson, Wise, Naishtat H.B. No. 797
1-2 (Senate Sponsor - Harris)
1-3 (In the Senate - Received from the House March 22, 1999;
1-4 March 23, 1999, read first time and referred to Committee on
1-5 Jurisprudence; April 15, 1999, reported favorably by the following
1-6 vote: Yeas 4, Nays 0; April 15, 1999, sent to printer.)
1-7 A BILL TO BE ENTITLED
1-8 AN ACT
1-9 relating to the Uniform Child Custody Jurisdiction and Enforcement
1-10 Act.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Chapter 152, Family Code, is amended to read as
1-13 follows:
1-14 CHAPTER 152. UNIFORM CHILD CUSTODY JURISDICTION AND
1-15 ENFORCEMENT ACT
1-16 SUBCHAPTER A. APPLICATION AND CONSTRUCTION
1-17 Sec. 152.001. APPLICATION AND CONSTRUCTION. This chapter
1-18 shall be applied and construed to promote the uniformity of the law
1-19 among the states that enact it.
1-20 Sec. 152.002. CONFLICTS BETWEEN PROVISIONS. If a provision
1-21 of this chapter conflicts with a provision of this title or another
1-22 statute or rule of this state and the conflict cannot be
1-23 reconciled, this chapter prevails.
1-24 (Sections 152.003-152.100 reserved for expansion
1-25 SUBCHAPTER B. GENERAL PROVISIONS
1-26 Sec. 152.101. SHORT TITLE. This chapter may be cited as the
1-27 Uniform Child Custody Jurisdiction and Enforcement Act.
1-28 Sec. 152.102. DEFINITIONS. In this chapter:
1-29 (1) "Abandoned" means left without provision for
1-30 reasonable and necessary care or supervision.
1-31 (2) "Child" means an individual who has not attained
1-32 18 years of age.
1-33 (3) "Child custody determination" means a judgment,
1-34 decree, or other order of a court providing for legal custody,
1-35 physical custody, or visitation with respect to a child. The term
1-36 includes permanent, temporary, initial, and modification orders.
1-37 The term does not include an order relating to child support or
1-38 another monetary obligation of an individual.
1-39 (4) "Child custody proceeding" means a proceeding in
1-40 which legal custody, physical custody, or visitation with respect
1-41 to a child is an issue. The term includes a proceeding for
1-42 divorce, separation, neglect, abuse, dependency, guardianship,
1-43 paternity, termination of parental rights, and protection from
1-44 domestic violence in which the issue may appear. The term does not
1-45 include a proceeding involving juvenile delinquency, contractual
1-46 emancipation, or enforcement under Subchapter D.
1-47 (5) "Commencement" means the filing of the first
1-48 pleading in a proceeding.
1-49 (6) "Court" means an entity authorized under the law
1-50 of a state to establish, enforce, or modify a child custody
1-51 determination.
1-52 (7) "Home state" means the state in which a child
1-53 lived with a parent or a person acting as a parent for at least six
1-54 consecutive months immediately before the commencement of a child
1-55 custody proceeding. In the case of a child less than six months of
1-56 age, the term means the state in which the child lived from birth
1-57 with a parent or a person acting as a parent. A period of
1-58 temporary absence of a parent or a person acting as a parent is
1-59 part of the period.
1-60 (8) "Initial determination" means the first child
1-61 custody determination concerning a particular child.
1-62 (9) "Issuing court" means the court that makes a child
1-63 custody determination for which enforcement is sought under this
1-64 chapter.
2-1 (10) "Issuing state" means the state in which a child
2-2 custody determination is made.
2-3 (11) "Legal custody" means the managing
2-4 conservatorship of a child.
2-5 (12) "Modification" means a child custody
2-6 determination that changes, replaces, supersedes, or is otherwise
2-7 made after a previous determination concerning the same child,
2-8 whether or not it is made by the court that made the previous
2-9 determination.
2-10 (13) "Person acting as a parent" means a person, other
2-11 than a parent, who:
2-12 (A) has physical custody of the child or has had
2-13 physical custody for a period of six consecutive months, including
2-14 any temporary absence, within one year immediately before the
2-15 commencement of a child custody proceeding; and
2-16 (B) has been awarded legal custody by a court or
2-17 claims a right to legal custody under the law of this state.
2-18 (14) "Physical custody" means the physical care and
2-19 supervision of a child.
2-20 (15) "Tribe" means an Indian tribe or band, or Alaskan
2-21 Native village, that is recognized by federal law or formally
2-22 acknowledged by a state.
2-23 (16) "Visitation" means the possession of or access to
2-24 a child.
2-25 (17) "Warrant" means an order issued by a court
2-26 authorizing law enforcement officers to take physical custody of a
2-27 child.
2-28 Sec. 152.103. PROCEEDINGS GOVERNED BY OTHER LAW. This
2-29 chapter does not govern an adoption proceeding or a proceeding
2-30 pertaining to the authorization of emergency medical care for a
2-31 child.
2-32 Sec. 152.104. APPLICATION TO INDIAN TRIBES. (a) A child
2-33 custody proceeding that pertains to an Indian child as defined in
2-34 the Indian Child Welfare Act of 1978 (25 U.S.C. Section 1901 et
2-35 seq.) is not subject to this chapter to the extent that it is
2-36 governed by the Indian Child Welfare Act.
2-37 (b) A court of this state shall treat a tribe as if it were
2-38 a state of the United States for the purpose of applying this
2-39 subchapter and Subchapter C.
2-40 (c) A child custody determination made by a tribe under
2-41 factual circumstances in substantial conformity with the
2-42 jurisdictional standards of this chapter must be recognized and
2-43 enforced under Subchapter D.
2-44 Sec. 152.105. INTERNATIONAL APPLICATION OF CHAPTER. (a) A
2-45 court of this state shall treat a foreign country as if it were a
2-46 state of the United States for the purpose of applying this
2-47 subchapter and Subchapter C.
2-48 (b) Except as otherwise provided in Subsection (c), a child
2-49 custody determination made in a foreign country under factual
2-50 circumstances in substantial conformity with the jurisdictional
2-51 standards of this chapter must be recognized and enforced under
2-52 Subchapter D.
2-53 (c) A court of this state need not apply this chapter if the
2-54 child custody law of a foreign country violates fundamental
2-55 principles of human rights.
2-56 Sec. 152.106. EFFECT OF CHILD CUSTODY DETERMINATION. A
2-57 child custody determination made by a court of this state that had
2-58 jurisdiction under this chapter binds all persons who have been
2-59 served in accordance with the laws of this state or notified in
2-60 accordance with Section 152.108 or who have submitted to the
2-61 jurisdiction of the court and who have been given an opportunity to
2-62 be heard. As to those persons, the determination is conclusive as
2-63 to all decided issues of law and fact except to the extent the
2-64 determination is modified.
2-65 Sec. 152.107. PRIORITY. If a question of existence or
2-66 exercise of jurisdiction under this chapter is raised in a child
2-67 custody proceeding, the question, upon request of a party, must be
2-68 given priority on the calendar and handled expeditiously.
2-69 Sec. 152.108. NOTICE TO PERSONS OUTSIDE STATE. (a) Notice
3-1 required for the exercise of jurisdiction when a person is outside
3-2 this state may be given in a manner prescribed by the law of this
3-3 state for service of process or by the law of the state in which
3-4 the service is made. Notice must be given in a manner reasonably
3-5 calculated to give actual notice but may be by publication if other
3-6 means are not effective.
3-7 (b) Proof of service may be made in the manner prescribed by
3-8 the law of this state or by the law of the state in which the
3-9 service is made.
3-10 (c) Notice is not required for the exercise of jurisdiction
3-11 with respect to a person who submits to the jurisdiction of the
3-12 court.
3-13 Sec. 152.109. APPEARANCE AND LIMITED IMMUNITY. (a) A party
3-14 to a child custody proceeding, including a modification proceeding,
3-15 or a petitioner or respondent in a proceeding to enforce or
3-16 register a child custody determination, is not subject to personal
3-17 jurisdiction in this state for another proceeding or purpose solely
3-18 by reason of having participated, or of having been physically
3-19 present for the purpose of participating, in the proceeding.
3-20 (b) A person who is subject to personal jurisdiction in this
3-21 state on a basis other than physical presence is not immune from
3-22 service of process in this state. A party present in this state
3-23 who is subject to the jurisdiction of another state is not immune
3-24 from service of process allowed under the laws of that state.
3-25 (c) The immunity granted by Subsection (a) does not extend
3-26 to civil litigation based on acts unrelated to the participation in
3-27 a proceeding under this chapter committed by an individual while
3-28 present in this state.
3-29 Sec. 152.110. COMMUNICATION BETWEEN COURTS. (a) In this
3-30 section, "record" means information that is inscribed on a tangible
3-31 medium or that is stored in an electronic or other medium and is
3-32 retrievable in perceivable form.
3-33 (b) A court of this state may communicate with a court in
3-34 another state concerning a proceeding arising under this chapter.
3-35 (c) The court may allow the parties to participate in the
3-36 communication. If the parties are not able to participate in the
3-37 communication, they must be given the opportunity to present facts
3-38 and legal arguments before a decision on jurisdiction is made.
3-39 (d) Communication between courts on schedules, calendars,
3-40 court records, and similar matters may occur without informing the
3-41 parties. A record need not be made of the communication.
3-42 (e) Except as otherwise provided in Subsection (d), a record
3-43 must be made of a communication under this section. The parties
3-44 must be informed promptly of the communication and granted access
3-45 to the record.
3-46 Sec. 152.111. TAKING TESTIMONY IN ANOTHER STATE. (a) In
3-47 addition to other procedures available to a party, a party to a
3-48 child custody proceeding may offer testimony of witnesses who are
3-49 located in another state, including testimony of the parties and
3-50 the child, by deposition or other means allowed in this state for
3-51 testimony taken in another state. The court on its own motion may
3-52 order that the testimony of a person be taken in another state and
3-53 may prescribe the manner in which and the terms upon which the
3-54 testimony is taken.
3-55 (b) A court of this state may permit an individual residing
3-56 in another state to be deposed or to testify by telephone,
3-57 audiovisual means, or other electronic means before a designated
3-58 court or at another location in that state. A court of this state
3-59 shall cooperate with courts of other states in designating an
3-60 appropriate location for the deposition or testimony.
3-61 (c) Documentary evidence transmitted from another state to a
3-62 court of this state by technological means that do not produce an
3-63 original writing may not be excluded from evidence on an objection
3-64 based on the means of transmission.
3-65 Sec. 152.112. COOPERATION BETWEEN COURTS; PRESERVATION OF
3-66 RECORDS. (a) A court of this state may request the appropriate
3-67 court of another state to:
3-68 (1) hold an evidentiary hearing;
3-69 (2) order a person to produce or give evidence
4-1 pursuant to procedures of that state;
4-2 (3) order that an evaluation be made with respect to
4-3 the custody of a child involved in a pending proceeding;
4-4 (4) forward to the court of this state a certified
4-5 copy of the transcript of the record of the hearing, the evidence
4-6 otherwise presented, and any evaluation prepared in compliance with
4-7 the request; and
4-8 (5) order a party to a child custody proceeding or any
4-9 person having physical custody of the child to appear in the
4-10 proceeding with or without the child.
4-11 (b) Upon request of a court of another state, a court of
4-12 this state may hold a hearing or enter an order described in
4-13 Subsection (a).
4-14 (c) Travel and other necessary and reasonable expenses
4-15 incurred under Subsections (a) and (b) may be assessed against the
4-16 parties according to the law of this state.
4-17 (d) A court of this state shall preserve the pleadings,
4-18 orders, decrees, records of hearings, evaluations, and other
4-19 pertinent records with respect to a child custody proceeding until
4-20 the child attains 18 years of age. Upon appropriate request by a
4-21 court or law enforcement official of another state, the court shall
4-22 forward a certified copy of those records.
4-23 (Sections 152.113-152.200 reserved for expansion
4-24 SUBCHAPTER C. JURISDICTION
4-25 Sec. 152.201. INITIAL CHILD CUSTODY JURISDICTION. (a)
4-26 Except as otherwise provided in Section 152.204, a court of this
4-27 state has jurisdiction to make an initial child custody
4-28 determination only if:
4-29 (1) this state is the home state of the child on the
4-30 date of the commencement of the proceeding, or was the home state
4-31 of the child within six months before the commencement of the
4-32 proceeding and the child is absent from this state but a parent or
4-33 person acting as a parent continues to live in this state;
4-34 (2) a court of another state does not have
4-35 jurisdiction under Subdivision (1), or a court of the home state of
4-36 the child has declined to exercise jurisdiction on the ground that
4-37 this state is the more appropriate forum under Section 152.207 or
4-38 152.208, and:
4-39 (A) the child and the child's parents, or the
4-40 child and at least one parent or a person acting as a parent, have
4-41 a significant connection with this state other than mere physical
4-42 presence; and
4-43 (B) substantial evidence is available in this
4-44 state concerning the child's care, protection, training, and
4-45 personal relationships;
4-46 (3) all courts having jurisdiction under Subdivision
4-47 (1) or (2) have declined to exercise jurisdiction on the ground
4-48 that a court of this state is the more appropriate forum to
4-49 determine the custody of the child under Section 152.207 or
4-50 152.208; or
4-51 (4) no court of any other state would have
4-52 jurisdiction under the criteria specified in Subdivision (1), (2),
4-53 or (3).
4-54 (b) Subsection (a) is the exclusive jurisdictional basis for
4-55 making a child custody determination by a court of this state.
4-56 (c) Physical presence of, or personal jurisdiction over, a
4-57 party or a child is not necessary or sufficient to make a child
4-58 custody determination.
4-59 Sec. 152.202. EXCLUSIVE CONTINUING JURISDICTION. (a)
4-60 Except as otherwise provided in Section 152.204, a court of this
4-61 state which has made a child custody determination consistent with
4-62 Section 152.201 or 152.203 has exclusive continuing jurisdiction
4-63 over the determination until:
4-64 (1) a court of this state determines that neither the
4-65 child, nor the child and one parent, nor the child and a person
4-66 acting as a parent, have a significant connection with this state
4-67 and that substantial evidence is no longer available in this state
4-68 concerning the child's care, protection, training, and personal
4-69 relationships; or
5-1 (2) a court of this state or a court of another state
5-2 determines that the child, the child's parents, and any person
5-3 acting as a parent do not presently reside in this state.
5-4 (b) A court of this state which has made a child custody
5-5 determination and does not have exclusive, continuing jurisdiction
5-6 under this section may modify that determination only if it has
5-7 jurisdiction to make an initial determination under Section
5-8 152.201.
5-9 Sec. 152.203. JURISDICTION TO MODIFY DETERMINATION. Except
5-10 as otherwise provided in Section 152.204, a court of this state may
5-11 not modify a child custody determination made by a court of another
5-12 state unless a court of this state has jurisdiction to make an
5-13 initial determination under Section 152.201(a)(1) or (2) and:
5-14 (1) the court of the other state determines it no
5-15 longer has exclusive continuing jurisdiction under Section 152.202
5-16 or that a court of this state would be a more convenient forum
5-17 under Section 152.207; or
5-18 (2) a court of this state or a court of the other
5-19 state determines that the child, the child's parents, and any
5-20 person acting as a parent do not presently reside in the other
5-21 state.
5-22 Sec. 152.204. TEMPORARY EMERGENCY JURISDICTION. (a) A
5-23 court of this state has temporary emergency jurisdiction if the
5-24 child is present in this state and the child has been abandoned or
5-25 it is necessary in an emergency to protect the child because the
5-26 child, or a sibling or parent of the child, is subjected to or
5-27 threatened with mistreatment or abuse.
5-28 (b) If there is no previous child custody determination that
5-29 is entitled to be enforced under this chapter and a child custody
5-30 proceeding has not been commenced in a court of a state having
5-31 jurisdiction under Sections 152.201 through 152.203, a child
5-32 custody determination made under this section remains in effect
5-33 until an order is obtained from a court of a state having
5-34 jurisdiction under Sections 152.201 through 152.203. If a child
5-35 custody proceeding has not been or is not commenced in a court of a
5-36 state having jurisdiction under Sections 152.201 through 152.203, a
5-37 child custody determination made under this section becomes a final
5-38 determination, if it so provides and this state becomes the home
5-39 state of the child.
5-40 (c) If there is a previous child custody determination that
5-41 is entitled to be enforced under this chapter, or a child custody
5-42 proceeding has been commenced in a court of a state having
5-43 jurisdiction under Sections 152.201 through 152.203, any order
5-44 issued by a court of this state under this section must specify in
5-45 the order a period that the court considers adequate to allow the
5-46 person seeking an order to obtain an order from the state having
5-47 jurisdiction under Sections 152.201 through 152.203. The order
5-48 issued in this state remains in effect until an order is obtained
5-49 from the other state within the period specified or the period
5-50 expires.
5-51 (d) A court of this state which has been asked to make a
5-52 child custody determination under this section, upon being informed
5-53 that a child custody proceeding has been commenced in or a child
5-54 custody determination has been made by a court of a state having
5-55 jurisdiction under Sections 152.201 through 152.203, shall
5-56 immediately communicate with the other court. A court of this
5-57 state which is exercising jurisdiction pursuant to Sections 152.201
5-58 through 152.203, upon being informed that a child custody
5-59 proceeding has been commenced in or a child custody determination
5-60 has been made by a court of another state under a statute similar
5-61 to this section shall immediately communicate with the court of
5-62 that state to resolve the emergency, protect the safety of the
5-63 parties and the child, and determine a period for the duration of
5-64 the temporary order.
5-65 Sec. 152.205. NOTICE; OPPORTUNITY TO BE HEARD; JOINDER. (a)
5-66 Before a child custody determination is made under this chapter,
5-67 notice and an opportunity to be heard in accordance with the
5-68 standards of Section 152.108 must be given to all persons entitled
5-69 to notice under the law of this state as in child custody
6-1 proceedings between residents of this state, any parent whose
6-2 parental rights have not been previously terminated, and any person
6-3 having physical custody of the child.
6-4 (b) This chapter does not govern the enforceability of a
6-5 child custody determination made without notice or an opportunity
6-6 to be heard.
6-7 (c) The obligation to join a party and the right to
6-8 intervene as a party in a child custody proceeding under this
6-9 chapter are governed by the law of this state as in child custody
6-10 proceedings between residents of this state.
6-11 Sec. 152.206. SIMULTANEOUS PROCEEDINGS. (a) Except as
6-12 otherwise provided in Section 152.204, a court of this state may
6-13 not exercise its jurisdiction under this subchapter if, at the time
6-14 of the commencement of the proceeding, a proceeding concerning the
6-15 custody of the child has been commenced in a court of another state
6-16 having jurisdiction substantially in conformity with this chapter,
6-17 unless the proceeding has been terminated or is stayed by the court
6-18 of the other state because a court of this state is a more
6-19 convenient forum under Section 152.207.
6-20 (b) Except as otherwise provided in Section 152.204, a court
6-21 of this state, before hearing a child custody proceeding, shall
6-22 examine the court documents and other information supplied by the
6-23 parties pursuant to Section 152.209. If the court determines that
6-24 a child custody proceeding has been commenced in a court in another
6-25 state having jurisdiction substantially in accordance with this
6-26 chapter, the court of this state shall stay its proceeding and
6-27 communicate with the court of the other state. If the court of the
6-28 state having jurisdiction substantially in accordance with this
6-29 chapter does not determine that the court of this state is a more
6-30 appropriate forum, the court of this state shall dismiss the
6-31 proceeding.
6-32 (c) In a proceeding to modify a child custody determination,
6-33 a court of this state shall determine whether a proceeding to
6-34 enforce the determination has been commenced in another state. If
6-35 a proceeding to enforce a child custody determination has been
6-36 commenced in another state, the court may:
6-37 (1) stay the proceeding for modification pending the
6-38 entry of an order of a court of the other state enforcing, staying,
6-39 denying, or dismissing the proceeding for enforcement;
6-40 (2) enjoin the parties from continuing with the
6-41 proceeding for enforcement; or
6-42 (3) proceed with the modification under conditions it
6-43 considers appropriate.
6-44 Sec. 152.207. INCONVENIENT FORUM. (a) A court of this
6-45 state which has jurisdiction under this chapter to make a child
6-46 custody determination may decline to exercise its jurisdiction at
6-47 any time if it determines that it is an inconvenient forum under
6-48 the circumstances and that a court of another state is a more
6-49 appropriate forum. The issue of inconvenient forum may be raised
6-50 upon motion of a party, the court's own motion, or request of
6-51 another court.
6-52 (b) Before determining whether it is an inconvenient forum,
6-53 a court of this state shall consider whether it is appropriate for
6-54 a court of another state to exercise jurisdiction. For this
6-55 purpose, the court shall allow the parties to submit information
6-56 and shall consider all relevant factors, including:
6-57 (1) whether domestic violence has occurred and is
6-58 likely to continue in the future and which state could best protect
6-59 the parties and the child;
6-60 (2) the length of time the child has resided outside
6-61 this state;
6-62 (3) the distance between the court in this state and
6-63 the court in the state that would assume jurisdiction;
6-64 (4) the relative financial circumstances of the
6-65 parties;
6-66 (5) any agreement of the parties as to which state
6-67 should assume jurisdiction;
6-68 (6) the nature and location of the evidence required
6-69 to resolve the pending litigation, including testimony of the
7-1 child;
7-2 (7) the ability of the court of each state to decide
7-3 the issue expeditiously and the procedures necessary to present the
7-4 evidence; and
7-5 (8) the familiarity of the court of each state with
7-6 the facts and issues in the pending litigation.
7-7 (c) If a court of this state determines that it is an
7-8 inconvenient forum and that a court of another state is a more
7-9 appropriate forum, the court shall stay the proceedings upon
7-10 condition that a child custody proceeding be promptly commenced in
7-11 another designated state and may impose any other condition the
7-12 court considers just and proper.
7-13 (d) A court of this state may decline to exercise its
7-14 jurisdiction under this chapter if a child custody determination is
7-15 incidental to an action for divorce or another proceeding while
7-16 still retaining jurisdiction over the divorce or other proceeding.
7-17 Sec. 152.208. JURISDICTION DECLINED BY REASON OF CONDUCT.
7-18 (a) Except as otherwise provided in Section 152.204 or other law
7-19 of this state, if a court of this state has jurisdiction under this
7-20 chapter because a person seeking to invoke its jurisdiction has
7-21 engaged in unjustifiable conduct, the court shall decline to
7-22 exercise its jurisdiction unless:
7-23 (1) the parents and all persons acting as parents have
7-24 acquiesced in the exercise of jurisdiction;
7-25 (2) a court of the state otherwise having jurisdiction
7-26 under Sections 152.201 through 152.203 determines that this state
7-27 is a more appropriate forum under Section 152.207; or
7-28 (3) no court of any other state would have
7-29 jurisdiction under the criteria specified in Sections 152.201
7-30 through 152.203.
7-31 (b) If a court of this state declines to exercise its
7-32 jurisdiction pursuant to Subsection (a), it may fashion an
7-33 appropriate remedy to ensure the safety of the child and prevent a
7-34 repetition of the unjustifiable conduct, including staying the
7-35 proceeding until a child custody proceeding is commenced in a court
7-36 having jurisdiction under Sections 152.201 through 152.203.
7-37 (c) If a court dismisses a petition or stays a proceeding
7-38 because it declines to exercise its jurisdiction pursuant to
7-39 Subsection (a), it shall assess against the party seeking to invoke
7-40 its jurisdiction necessary and reasonable expenses including costs,
7-41 communication expenses, attorney's fees, investigative fees,
7-42 expenses for witnesses, travel expenses, and child care during the
7-43 course of the proceedings, unless the party from whom fees are
7-44 sought establishes that the assessment would be clearly
7-45 inappropriate. The court may not assess fees, costs, or expenses
7-46 against this state unless authorized by law other than this
7-47 chapter.
7-48 Sec. 152.209. INFORMATION TO BE SUBMITTED TO COURT. (a)
7-49 Except as provided by Subsection (e), in a child custody
7-50 proceeding, each party, in its first pleading or in an attached
7-51 affidavit, shall give information, if reasonably ascertainable,
7-52 under oath as to the child's present address or whereabouts, the
7-53 places where the child has lived during the last five years, and
7-54 the names and present addresses of the persons with whom the child
7-55 has lived during that period. The pleading or affidavit must state
7-56 whether the party:
7-57 (1) has participated, as a party or witness or in any
7-58 other capacity, in any other proceeding concerning the custody of
7-59 or visitation with the child and, if so, identify the court, the
7-60 case number, and the date of the child custody determination, if
7-61 any;
7-62 (2) knows of any proceeding that could affect the
7-63 current proceeding, including proceedings for enforcement and
7-64 proceedings relating to domestic violence, protective orders,
7-65 termination of parental rights, and adoptions and, if so, identify
7-66 the court, the case number, and the nature of the proceeding; and
7-67 (3) knows the names and addresses of any person not a
7-68 party to the proceeding who has physical custody of the child or
7-69 claims rights of legal custody or physical custody of, or
8-1 visitation with, the child and, if so, the names and addresses of
8-2 those persons.
8-3 (b) If the information required by Subsection (a) is not
8-4 furnished, the court, upon motion of a party or its own motion, may
8-5 stay the proceeding until the information is furnished.
8-6 (c) If the declaration as to any of the items described in
8-7 Subsections (a)(1) through (3) is in the affirmative, the declarant
8-8 shall give additional information under oath as required by the
8-9 court. The court may examine the parties under oath as to details
8-10 of the information furnished and other matters pertinent to the
8-11 court's jurisdiction and the disposition of the case.
8-12 (d) Each party has a continuing duty to inform the court of
8-13 any proceeding in this or any other state that could affect the
8-14 current proceeding.
8-15 (e) If a party alleges in an affidavit or a pleading under
8-16 oath that the health, safety, or liberty of a party or child would
8-17 be jeopardized by disclosure of identifying information, the
8-18 information must be sealed and may not be disclosed to the other
8-19 party or the public unless the court orders the disclosure to be
8-20 made after a hearing in which the court takes into consideration
8-21 the health, safety, or liberty of the party or child and determines
8-22 that the disclosure is in the interest of justice.
8-23 Sec. 152.210. APPEARANCE OF PARTIES AND CHILD. (a) In a
8-24 child custody proceeding in this state, the court may order a party
8-25 to the proceeding who is in this state to appear before the court
8-26 in person with or without the child. The court may order any
8-27 person who is in this state and who has physical custody or control
8-28 of the child to appear in person with the child.
8-29 (b) If a party to a child custody proceeding whose presence
8-30 is desired by the court is outside this state, the court may order
8-31 that a notice given pursuant to Section 152.108 include a statement
8-32 directing the party to appear in person with or without the child
8-33 and informing the party that failure to appear may result in a
8-34 decision adverse to the party.
8-35 (c) The court may enter any orders necessary to ensure the
8-36 safety of the child and of any person ordered to appear under this
8-37 section.
8-38 (d) If a party to a child custody proceeding who is outside
8-39 this state is directed to appear under Subsection (b) or desires to
8-40 appear personally before the court with or without the child, the
8-41 court may require another party to pay reasonable and necessary
8-42 travel and other expenses of the party so appearing and of the
8-43 child.
8-44 (Sections 152.211-152.300 reserved for expansion
8-45 SUBCHAPTER D. ENFORCEMENT
8-46 Sec. 152.301. DEFINITIONS. In this subchapter:
8-47 (1) "Petitioner" means a person who seeks enforcement
8-48 of an order for return of a child under the Hague Convention on the
8-49 Civil Aspects of International Child Abduction or enforcement of a
8-50 child custody determination.
8-51 (2) "Respondent" means a person against whom a
8-52 proceeding has been commenced for enforcement of an order for
8-53 return of a child under the Hague Convention on the Civil Aspects
8-54 of International Child Abduction or enforcement of a child custody
8-55 determination.
8-56 Sec. 152.302. ENFORCEMENT UNDER HAGUE CONVENTION. Under
8-57 this subchapter a court of this state may enforce an order for the
8-58 return of the child made under the Hague Convention on the Civil
8-59 Aspects of International Child Abduction as if it were a child
8-60 custody determination.
8-61 Sec. 152.303. DUTY TO ENFORCE. (a) A court of this state
8-62 shall recognize and enforce a child custody determination of a
8-63 court of another state if the latter court exercised jurisdiction
8-64 in substantial conformity with this chapter or the determination
8-65 was made under factual circumstances meeting the jurisdictional
8-66 standards of this chapter and the determination has not been
8-67 modified in accordance with this chapter.
8-68 (b) A court of this state may utilize any remedy available
8-69 under other law of this state to enforce a child custody
9-1 determination made by a court of another state. The remedies
9-2 provided in this subchapter are cumulative and do not affect the
9-3 availability of other remedies to enforce a child custody
9-4 determination.
9-5 Sec. 152.304. TEMPORARY VISITATION. (a) A court of this
9-6 state which does not have jurisdiction to modify a child custody
9-7 determination may issue a temporary order enforcing:
9-8 (1) a visitation schedule made by a court of another
9-9 state; or
9-10 (2) the visitation provisions of a child custody
9-11 determination of another state that does not provide for a specific
9-12 visitation schedule.
9-13 (b) If a court of this state makes an order under Subsection
9-14 (a)(2), the court shall specify in the order a period that it
9-15 considers adequate to allow the petitioner to obtain an order from
9-16 a court having jurisdiction under the criteria specified in
9-17 Subchapter C. The order remains in effect until an order is
9-18 obtained from the other court or the period expires.
9-19 Sec. 152.305. REGISTRATION OF CHILD CUSTODY DETERMINATION.
9-20 (a) A child custody determination issued by a court of another
9-21 state may be registered in this state, with or without a
9-22 simultaneous request for enforcement, by sending to the appropriate
9-23 court in this state:
9-24 (1) a letter or other document requesting
9-25 registration;
9-26 (2) two copies, including one certified copy, of the
9-27 determination sought to be registered and a statement under penalty
9-28 of perjury that to the best of the knowledge and belief of the
9-29 person seeking registration the order has not been modified; and
9-30 (3) except as otherwise provided in Section 152.209,
9-31 the name and address of the person seeking registration and any
9-32 parent or person acting as a parent who has been awarded custody or
9-33 visitation in the child custody determination sought to be
9-34 registered.
9-35 (b) On receipt of the documents required by Subsection (a),
9-36 the registering court shall:
9-37 (1) cause the determination to be filed as a foreign
9-38 judgment, together with one copy of any accompanying documents and
9-39 information, regardless of their form; and
9-40 (2) serve notice upon the persons named pursuant to
9-41 Subsection (a)(3) and provide them with an opportunity to contest
9-42 the registration in accordance with this section.
9-43 (c) The notice required by Subsection (b)(2) must state
9-44 that:
9-45 (1) a registered determination is enforceable as of
9-46 the date of the registration in the same manner as a determination
9-47 issued by a court of this state;
9-48 (2) a hearing to contest the validity of the
9-49 registered determination must be requested within 20 days after
9-50 service of notice; and
9-51 (3) failure to contest the registration will result in
9-52 confirmation of the child custody determination and preclude
9-53 further contest of that determination with respect to any matter
9-54 that could have been asserted.
9-55 (d) A person seeking to contest the validity of a registered
9-56 order must request a hearing within 20 days after service of the
9-57 notice. At that hearing, the court shall confirm the registered
9-58 order unless the person contesting registration establishes that:
9-59 (1) the issuing court did not have jurisdiction under
9-60 Subchapter C;
9-61 (2) the child custody determination sought to be
9-62 registered has been vacated, stayed, or modified by a court having
9-63 jurisdiction to do so under Subchapter C; or
9-64 (3) the person contesting registration was entitled to
9-65 notice, but notice was not given in accordance with the standards
9-66 of Section 152.108, in the proceedings before the court that issued
9-67 the order for which registration is sought.
9-68 (e) If a timely request for a hearing to contest the
9-69 validity of the registration is not made, the registration is
10-1 confirmed as a matter of law and the person requesting registration
10-2 and all persons served must be notified of the confirmation.
10-3 (f) Confirmation of a registered order, whether by operation
10-4 of law or after notice and hearing, precludes further contest of
10-5 the order with respect to any matter that could have been asserted
10-6 at the time of registration.
10-7 Sec. 152.306. ENFORCEMENT OF REGISTERED DETERMINATION. (a)
10-8 A court of this state may grant any relief normally available under
10-9 the law of this state to enforce a registered child custody
10-10 determination made by a court of another state.
10-11 (b) A court of this state shall recognize and enforce, but
10-12 may not modify, except in accordance with Subchapter C, a
10-13 registered child custody determination of a court of another state.
10-14 Sec. 152.307. SIMULTANEOUS PROCEEDINGS. If a proceeding for
10-15 enforcement under this subchapter is commenced in a court of this
10-16 state and the court determines that a proceeding to modify the
10-17 determination is pending in a court of another state having
10-18 jurisdiction to modify the determination under Subchapter C, the
10-19 enforcing court shall immediately communicate with the modifying
10-20 court. The proceeding for enforcement continues unless the
10-21 enforcing court, after consultation with the modifying court, stays
10-22 or dismisses the proceeding.
10-23 Sec. 152.308. EXPEDITED ENFORCEMENT OF CHILD CUSTODY
10-24 DETERMINATION. (a) A petition under this subchapter must be
10-25 verified. Certified copies of all orders sought to be enforced and
10-26 of any order confirming registration must be attached to the
10-27 petition. A copy of a certified copy of an order may be attached
10-28 instead of the original.
10-29 (b) A petition for enforcement of a child custody
10-30 determination must state:
10-31 (1) whether the court that issued the determination
10-32 identified the jurisdictional basis it relied upon in exercising
10-33 jurisdiction and, if so, what the basis was;
10-34 (2) whether the determination for which enforcement is
10-35 sought has been vacated, stayed, or modified by a court whose
10-36 decision must be enforced under this chapter and, if so, identify
10-37 the court, the case number, and the nature of the proceeding;
10-38 (3) whether any proceeding has been commenced that
10-39 could affect the current proceeding, including proceedings relating
10-40 to domestic violence, protective orders, termination of parental
10-41 rights, and adoptions and, if so, identify the court, the case
10-42 number, and the nature of the proceeding;
10-43 (4) the present physical address of the child and the
10-44 respondent, if known;
10-45 (5) whether relief in addition to the immediate
10-46 physical custody of the child and attorney's fees is sought,
10-47 including a request for assistance from law enforcement officials
10-48 and, if so, the relief sought; and
10-49 (6) if the child custody determination has been
10-50 registered and confirmed under Section 152.305, the date and place
10-51 of registration.
10-52 (c) Upon the filing of a petition, the court shall issue an
10-53 order directing the respondent to appear in person with or without
10-54 the child at a hearing and may enter any order necessary to ensure
10-55 the safety of the parties and the child. The hearing must be held
10-56 on the next judicial day after service of the order unless that
10-57 date is impossible. In that event, the court shall hold the
10-58 hearing on the first judicial day possible. The court may extend
10-59 the date of hearing at the request of the petitioner.
10-60 (d) An order issued under Subsection (c) must state the time
10-61 and place of the hearing and advise the respondent that at the
10-62 hearing the court will award the petitioner immediate physical
10-63 custody of the child and order the payment of fees, costs, and
10-64 expenses under Section 152.312, and may schedule a hearing to
10-65 determine whether further relief is appropriate, unless the
10-66 respondent appears and establishes that:
10-67 (1) the child custody determination has not been
10-68 registered and confirmed under Section 152.305 and that:
10-69 (A) the issuing court did not have jurisdiction
11-1 under Subchapter C;
11-2 (B) the child custody determination for which
11-3 enforcement is sought has been vacated, stayed, or modified by a
11-4 court having jurisdiction to do so under Subchapter C; or
11-5 (C) the respondent was entitled to notice, but
11-6 notice was not given in accordance with the standards of Section
11-7 152.108, in the proceedings before the court that issued the order
11-8 for which enforcement is sought; or
11-9 (2) the child custody determination for which
11-10 enforcement is sought was registered and confirmed under Section
11-11 152.305, but has been vacated, stayed, or modified by a court of a
11-12 state having jurisdiction to do so under Subchapter C.
11-13 Sec. 152.309. SERVICE OF PETITION AND ORDER. Except as
11-14 otherwise provided in Section 152.311, the petition and order must
11-15 be served, by any method authorized by the law of this state, upon
11-16 the respondent and any person who has physical custody of the
11-17 child.
11-18 Sec. 152.310. HEARING AND ORDER. (a) Unless the court
11-19 issues a temporary emergency order pursuant to Section 152.204,
11-20 upon a finding that a petitioner is entitled to immediate physical
11-21 custody of the child, the court shall order that the petitioner may
11-22 take immediate physical custody of the child unless the respondent
11-23 establishes that:
11-24 (1) the child custody determination has not been
11-25 registered and confirmed under Section 152.305 and that:
11-26 (A) the issuing court did not have jurisdiction
11-27 under Subchapter C;
11-28 (B) the child custody determination for which
11-29 enforcement is sought has been vacated, stayed, or modified by a
11-30 court of a state having jurisdiction to do so under Subchapter C;
11-31 or
11-32 (C) the respondent was entitled to notice, but
11-33 notice was not given in accordance with the standards of Section
11-34 152.108, in the proceedings before the court that issued the order
11-35 for which enforcement is sought; or
11-36 (2) the child custody determination for which
11-37 enforcement is sought was registered and confirmed under Section
11-38 152.305 but has been vacated, stayed, or modified by a court of a
11-39 state having jurisdiction to do so under Subchapter C.
11-40 (b) The court shall award the fees, costs, and expenses
11-41 authorized under Section 152.312 and may grant additional relief,
11-42 including a request for the assistance of law enforcement
11-43 officials, and set a further hearing to determine whether
11-44 additional relief is appropriate.
11-45 (c) If a party called to testify refuses to answer on the
11-46 ground that the testimony may be self-incriminating, the court may
11-47 draw an adverse inference from the refusal.
11-48 (d) A privilege against disclosure of communications between
11-49 spouses and a defense of immunity based on the relationship of
11-50 husband and wife or parent and child may not be invoked in a
11-51 proceeding under this subchapter.
11-52 Sec. 152.311. WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD.
11-53 (a) Upon the filing of a petition seeking enforcement of a child
11-54 custody determination, the petitioner may file a verified
11-55 application for the issuance of a warrant to take physical custody
11-56 of the child if the child is imminently likely to suffer serious
11-57 physical harm or be removed from this state.
11-58 (b) If the court, upon the testimony of the petitioner or
11-59 other witness, finds that the child is imminently likely to suffer
11-60 serious physical harm or be removed from this state, it may issue
11-61 a warrant to take physical custody of the child. The petition must
11-62 be heard on the next judicial day after the warrant is executed
11-63 unless that date is impossible. In that event, the court shall
11-64 hold the hearing on the first judicial day possible. The
11-65 application for the warrant must include the statements required by
11-66 Section 152.308(b).
11-67 (c) A warrant to take physical custody of a child must:
11-68 (1) recite the facts upon which a conclusion of
11-69 imminent serious physical harm or removal from the jurisdiction is
12-1 based;
12-2 (2) direct law enforcement officers to take physical
12-3 custody of the child immediately; and
12-4 (3) provide for the placement of the child pending
12-5 final relief.
12-6 (d) The respondent must be served with the petition,
12-7 warrant, and order immediately after the child is taken into
12-8 physical custody.
12-9 (e) A warrant to take physical custody of a child is
12-10 enforceable throughout this state. If the court finds on the basis
12-11 of the testimony of the petitioner or other witness that a less
12-12 intrusive remedy is not effective, it may authorize law enforcement
12-13 officers to enter private property to take physical custody of the
12-14 child. If required by exigent circumstances of the case, the court
12-15 may authorize law enforcement officers to make a forcible entry at
12-16 any hour.
12-17 (f) The court may impose conditions upon placement of a
12-18 child to ensure the appearance of the child and the child's
12-19 custodian.
12-20 Sec. 152.312. COSTS, FEES, AND EXPENSES. (a) The court
12-21 shall award the prevailing party, including a state, necessary and
12-22 reasonable expenses incurred by or on behalf of the party,
12-23 including costs, communication expenses, attorney's fees,
12-24 investigative fees, expenses for witnesses, travel expenses, and
12-25 child care during the course of the proceedings, unless the party
12-26 from whom fees or expenses are sought establishes that the award
12-27 would be clearly inappropriate.
12-28 (b) The court may not assess fees, costs, or expenses
12-29 against a state unless authorized by law other than this chapter.
12-30 Sec. 152.313. RECOGNITION AND ENFORCEMENT. A court of this
12-31 state shall accord full faith and credit to an order issued by
12-32 another state and consistent with this chapter which enforces a
12-33 child custody determination by a court of another state unless the
12-34 order has been vacated, stayed, or modified by a court having
12-35 jurisdiction to do so under Subchapter C.
12-36 Sec. 152.314. APPEALS. An appeal may be taken from a final
12-37 order in a proceeding under this subchapter in accordance with
12-38 expedited appellate procedures in other civil cases. Unless the
12-39 court enters a temporary emergency order under Section 152.204, the
12-40 enforcing court may not stay an order enforcing a child custody
12-41 determination pending appeal.
12-42 Sec. 152.315. ROLE OF PROSECUTOR OR PUBLIC OFFICIAL. (a)
12-43 In a case arising under this chapter or involving the Hague
12-44 Convention on the Civil Aspects of International Child Abduction,
12-45 the prosecutor or other appropriate public official may take any
12-46 lawful action, including resorting to a proceeding under this
12-47 subchapter or any other available civil proceeding to locate a
12-48 child, obtain the return of a child, or enforce a child custody
12-49 determination if there is:
12-50 (1) an existing child custody determination;
12-51 (2) a request to do so from a court in a pending child
12-52 custody proceeding;
12-53 (3) a reasonable belief that a criminal statute has
12-54 been violated; or
12-55 (4) a reasonable belief that the child has been
12-56 wrongfully removed or retained in violation of the Hague Convention
12-57 on the Civil Aspects of International Child Abduction.
12-58 (b) A prosecutor or appropriate public official acting under
12-59 this section acts on behalf of the court and may not represent any
12-60 party.
12-61 Sec. 152.316. ROLE OF LAW ENFORCEMENT. At the request of a
12-62 prosecutor or other appropriate public official acting under
12-63 Section 152.315, a law enforcement officer may take any lawful
12-64 action reasonably necessary to locate a child or a party and assist
12-65 a prosecutor or appropriate public official with responsibilities
12-66 under Section 152.315.
12-67 Sec. 152.317. COSTS AND EXPENSES. If the respondent is not
12-68 the prevailing party, the court may assess against the respondent
12-69 all direct expenses and costs incurred by the prosecutor or other
13-1 appropriate public official and law enforcement officers under
13-2 Section 152.315 or 152.316.
13-3 [Sec. 152.001. PURPOSES; CONSTRUCTION OF PROVISIONS. (a)
13-4 The general purposes of this chapter are to:]
13-5 [(1) avoid jurisdictional competition and conflict
13-6 with courts of other states in matters of child custody that have
13-7 in the past resulted in the shifting of children from state to
13-8 state with harmful effects on their well-being;]
13-9 [(2) promote cooperation with the courts of other
13-10 states to the end that a custody decree is rendered in the state
13-11 that can best decide the case in the interest of the child;]
13-12 [(3) ensure that litigation concerning the custody of
13-13 a child takes place ordinarily in the state with which the child
13-14 and the child's family have the closest connection and where
13-15 significant evidence concerning the child's care, protection,
13-16 training, and personal relationships is most readily available, and
13-17 that courts of this state decline the exercise of jurisdiction when
13-18 the child and the child's family have a closer connection with
13-19 another state;]
13-20 [(4) discourage continuing controversies over child
13-21 custody in the interest of greater stability of home environment
13-22 and of secure family relationships for the child;]
13-23 [(5) deter abductions and other unilateral removals of
13-24 children undertaken to obtain custody awards;]
13-25 [(6) avoid relitigation of custody decisions of other
13-26 states in this state insofar as is feasible;]
13-27 [(7) facilitate the enforcement of custody decrees of
13-28 other states;]
13-29 [(8) promote and expand the exchange of information
13-30 and other forms of mutual assistance between the courts of this
13-31 state and those of other states concerned with the same child; and]
13-32 [(9) make uniform the law of those states that enact
13-33 it.]
13-34 [(b) This chapter shall be construed to promote the general
13-35 purposes stated in this section.]
13-36 [Sec. 152.002. DEFINITIONS. In this chapter:]
13-37 [(1) "Contestant" means a person, including a parent,
13-38 who claims a right to custody or visitation rights with respect to
13-39 a child.]
13-40 [(2) "Custody" means managing conservatorship of a
13-41 child.]
13-42 [(3) "Custody determination" means a court decision
13-43 and court orders and instructions providing for the custody of a
13-44 child, including visitation rights, but does not include a decision
13-45 relating to child support or any other monetary obligation of any
13-46 person.]
13-47 [(4) "Custody proceeding" includes a proceeding in
13-48 which a custody determination is one of several issues, such as an
13-49 action for divorce or separation, and includes child neglect and
13-50 dependency proceedings.]
13-51 [(5) "Decree" or "custody decree" means a custody
13-52 determination contained in a judicial decree or order made in a
13-53 custody proceeding and includes an initial decree and a
13-54 modification decree.]
13-55 [(6) "Home state" means the state in which the child,
13-56 preceding the time involved, lived with the child's parents, a
13-57 parent, or a person acting as parent for at least six consecutive
13-58 months and, in the case of a child less than six months old, the
13-59 state in which the child lived from birth with any of the persons
13-60 mentioned. Periods of temporary absence of any of the named
13-61 persons are counted as part of the six-month or other period.]
13-62 [(7) "Initial decree" means the first custody decree
13-63 concerning a particular child.]
13-64 [(8) "Modification decree" means a custody decree that
13-65 modifies or replaces a prior decree, whether made by the court that
13-66 rendered the prior decree or by another court.]
13-67 [(9) "Physical custody" means actual possession and
13-68 control of a child.]
13-69 [(10) "Person acting as parent" means a person, other
14-1 than a parent, who has physical custody of a child and who either
14-2 has been awarded custody by a court or claims a right to custody.]
14-3 [(11) "Visitation" means possession of or access to a
14-4 child.]
14-5 [Sec. 152.003. JURISDICTION. (a) A court of this state
14-6 that is competent to decide child custody matters has jurisdiction
14-7 to make a child custody determination by initial decree or
14-8 modification decree or order if:]
14-9 [(1) this state:]
14-10 [(A) is the home state of the child on the date
14-11 of the commencement of the proceeding; or]
14-12 [(B) had been the child's home state within six
14-13 months before the date of the commencement of the proceeding and
14-14 the child is absent from this state because of the child's removal
14-15 or retention by a person claiming the child's custody or for other
14-16 reasons, and a parent or person acting as parent continues to live
14-17 in this state;]
14-18 [(2) it appears that no other state would have
14-19 jurisdiction under Subdivision (1) and it is in the best interest
14-20 of the child that a court of this state assume jurisdiction
14-21 because:]
14-22 [(A) the child and the child's parents or the
14-23 child and at least one contestant have a significant connection
14-24 with this state other than mere physical presence in this state;
14-25 and]
14-26 [(B) there is available in this state
14-27 substantial evidence concerning the child's present or future care,
14-28 protection, training, and personal relationships;]
14-29 [(3) the child is physically present in this state
14-30 and:]
14-31 [(A) the child has been abandoned; or]
14-32 [(B) it is necessary in an emergency to protect
14-33 the child because the child has been subjected to or threatened
14-34 with mistreatment or abuse or is otherwise neglected or there is a
14-35 serious and immediate question concerning the welfare of the child;
14-36 or]
14-37 [(4) it is in the best interest of the child that the
14-38 court assume jurisdiction and:]
14-39 [(A) it appears that no other state would have
14-40 jurisdiction under prerequisites substantially in accordance with
14-41 Subdivision (1), (2), or (3); or]
14-42 [(B) another state has declined to exercise
14-43 jurisdiction on the ground that this state is the more appropriate
14-44 forum to determine the custody of the child.]
14-45 [(b) Except under Subsections (a)(3) and (4), physical
14-46 presence in this state of the child or of the child and one of the
14-47 contestants is not alone sufficient to confer jurisdiction on a
14-48 court of this state to make a child custody determination.]
14-49 [(c) Physical presence of the child, while desirable, is not
14-50 a prerequisite for jurisdiction to determine the child's custody.]
14-51 [(d) Except on written agreement of all the parties, a court
14-52 may not exercise its continuing jurisdiction to modify custody if
14-53 the child and the party with custody have established another home
14-54 state unless the action to modify was filed before the new home
14-55 state was acquired.]
14-56 [(e) A court that has jurisdiction of a suit under
14-57 Subsection (a)(3) for which a court in another state may exercise
14-58 jurisdiction under prerequisites substantially in accordance with
14-59 Subsection (a)(1) or (2) may enter only a temporary order to
14-60 protect the child. The suit shall be dismissed in this state on
14-61 the date a court of competent jurisdiction in another state signs
14-62 an order in the suit or on the 91st day after the date the court in
14-63 this state exercised its jurisdiction, whichever date occurs first.
14-64 This subsection does not apply to a suit brought under Chapter 262.]
14-65 [Sec. 152.004. NOTICE AND OPPORTUNITY TO BE HEARD. Before
14-66 making a custody decree based on jurisdiction established under
14-67 this chapter, reasonable notice and opportunity to be heard must be
14-68 given to the contestants, to any parent whose parental rights have
14-69 not been previously terminated, and to any person who has physical
15-1 custody of the child. If any of these persons is outside this
15-2 state, notice and opportunity to be heard must be given as provided
15-3 under Section 152.005.]
15-4 [Sec. 152.005. NOTICE TO PERSONS OUTSIDE THIS STATE;
15-5 SUBMISSION TO JURISDICTION. (a) Notice required for the exercise
15-6 of jurisdiction over a person outside this state must be given in a
15-7 manner reasonably calculated to give actual notice and may be
15-8 given:]
15-9 [(1) by personal delivery outside this state in the
15-10 manner prescribed for service of process within this state;]
15-11 [(2) in the manner prescribed by the law of the place
15-12 in which the service is made for service of process in that place
15-13 in an action in any of its courts of general jurisdiction;]
15-14 [(3) by any form of mail addressed to the person to be
15-15 served and requesting a receipt, subject to the requirements of the
15-16 Texas Rules of Civil Procedure; or]
15-17 [(4) as directed by the court, including publication,
15-18 if other means of notification are ineffective, subject to the
15-19 requirements of the Texas Rules of Civil Procedure.]
15-20 [(b) Notice under this section must be delivered, mailed, or
15-21 published with sufficient time to allow for filing of an answer
15-22 before any hearing in this state, in accordance with the Texas
15-23 Rules of Civil Procedure applicable to the filing of an original
15-24 lawsuit. Each party whose rights, privileges, duties, or powers
15-25 may be affected by the action is entitled to receive notice by
15-26 citation and shall be commanded to appear by filing a written
15-27 answer. Thereafter, the proceedings shall be as in civil cases
15-28 generally.]
15-29 [(c) Proof of service outside this state may be made by the
15-30 affidavit of the individual who made the service or in the manner
15-31 prescribed by the law of this state, by the order under which the
15-32 service is made, or by the law of the place in which the service is
15-33 made. If service is made by mail, proof may be a receipt signed by
15-34 the addressee or other evidence of delivery to the addressee.]
15-35 [(d) Notice is not required if a person submits to the
15-36 jurisdiction of the court.]
15-37 [Sec. 152.006. SIMULTANEOUS PROCEEDINGS IN OTHER STATE. (a)
15-38 A court of this state may not exercise its jurisdiction under this
15-39 chapter if, at the time of filing the petition, a proceeding
15-40 concerning the custody of the child was pending in a court of
15-41 another state exercising jurisdiction substantially in conformity
15-42 with this chapter, unless the proceeding is stayed by the court of
15-43 the other state because this state is a more appropriate forum or
15-44 for other reasons.]
15-45 [(b) Before hearing the petition in a custody proceeding,
15-46 the court shall examine the pleadings and other information
15-47 supplied by the parties under Section 152.009 and shall consult the
15-48 child custody registry established under Section 152.016 concerning
15-49 the pendency of proceedings with respect to the child in other
15-50 states. If the court has reason to believe that proceedings may be
15-51 pending in another state, it shall direct an inquiry to the state
15-52 court administrator or other appropriate official of the other
15-53 state.]
15-54 [(c) If the court is informed during the course of the
15-55 proceeding that a proceeding concerning the custody of the child
15-56 was pending in another state before the court assumed jurisdiction,
15-57 it shall stay the proceeding and communicate with the court in
15-58 which the other proceeding is pending to the end that the issue may
15-59 be litigated in the more appropriate forum and that information may
15-60 be exchanged in accordance with Sections 152.019-152.022. If a
15-61 court of this state has made a custody decree before being informed
15-62 of a pending proceeding in a court of another state, it shall
15-63 immediately inform that court of the fact. If the court is
15-64 informed that a proceeding was commenced in another state after it
15-65 assumed jurisdiction, it shall likewise inform the other court to
15-66 the end that the issues may be litigated in the more appropriate
15-67 forum.]
15-68 [Sec. 152.007. INCONVENIENT FORUM. (a) A court that has
15-69 jurisdiction under this chapter to make an initial or modification
16-1 decree may decline to exercise its jurisdiction any time before
16-2 making a decree if it finds that it is an inconvenient forum to
16-3 make a custody determination under the circumstances of the case
16-4 and that a court of another state is a more appropriate forum.]
16-5 [(b) A finding of inconvenient forum may be made on the
16-6 court's own motion or on the motion of a party or a guardian ad
16-7 litem or other representative of the child.]
16-8 [(c) In determining whether it is an inconvenient forum, the
16-9 court shall consider whether it is in the best interest of the
16-10 child that another state assume jurisdiction. For this purpose,
16-11 the court may take into account the following factors, among
16-12 others:]
16-13 [(1) whether another state is or recently was the
16-14 child's home state;]
16-15 [(2) whether another state has a closer connection
16-16 with the child and the child's family or with the child and one or
16-17 more of the contestants;]
16-18 [(3) whether substantial evidence concerning the
16-19 child's present or future care, protection, training, and personal
16-20 relationships is more readily available in another state;]
16-21 [(4) whether the parties have agreed on another forum
16-22 that is no less appropriate; and]
16-23 [(5) whether the exercise of jurisdiction by a court
16-24 of this state would contravene any of the purposes stated in
16-25 Section 152.001.]
16-26 [(d) Before determining whether to decline or retain
16-27 jurisdiction, the court may communicate with a court of another
16-28 state and exchange information pertinent to the assumption of
16-29 jurisdiction by either court with a view to ensuring that
16-30 jurisdiction will be exercised by the more appropriate court and
16-31 that a forum will be available to the parties.]
16-32 [(e) If the court finds that it is an inconvenient forum and
16-33 that a court of another state is a more appropriate forum, it may
16-34 dismiss the proceedings, or it may stay the proceedings on
16-35 condition that a custody proceeding be promptly commenced in
16-36 another named state or on any other condition that may be just and
16-37 proper, including the condition that a moving party stipulate the
16-38 party's consent and submission to the jurisdiction of the other
16-39 forum.]
16-40 [(f) The court may decline to exercise its jurisdiction
16-41 under this chapter if a custody determination is incidental to an
16-42 action for divorce or another proceeding while retaining
16-43 jurisdiction over the divorce or other proceeding.]
16-44 [(g) If it appears to the court that it is clearly an
16-45 inappropriate forum, the court may require the party who commenced
16-46 the proceedings to pay, in addition to the costs of the proceedings
16-47 in this state, necessary travel and other expenses, including
16-48 attorney's fees, incurred by other parties or their witnesses.]
16-49 [(h) On dismissal or stay of proceedings under this section,
16-50 the court shall inform the court found to be the more appropriate
16-51 forum of this fact or, if the court that would have jurisdiction in
16-52 the other state is not certainly known, shall transmit the
16-53 information to the court administrator or other appropriate
16-54 official for forwarding to the appropriate court.]
16-55 [(i) Any communication received from another state informing
16-56 this state of a finding of inconvenient forum because a court of
16-57 this state is the more appropriate forum shall be filed in the
16-58 custody registry of the appropriate court. On assuming
16-59 jurisdiction, the court of this state shall inform the original
16-60 court of this fact.]
16-61 [Sec. 152.008. JURISDICTION DECLINED BY REASON OF CONDUCT.
16-62 (a) If the petitioner for an initial decree has wrongfully taken
16-63 the child from another state or has engaged in similar
16-64 reprehensible conduct, the court may decline to exercise
16-65 jurisdiction if just and proper under the circumstances.]
16-66 [(b) Unless required in the interest of the child, the court
16-67 may not exercise its jurisdiction to modify a custody decree of
16-68 another state if the petitioner, without consent of the person
16-69 entitled to custody, has improperly removed the child from the
17-1 physical custody of the person entitled to custody or has
17-2 improperly retained the child after a visit or other temporary
17-3 relinquishment of physical custody. If the petitioner has violated
17-4 any other provision of a custody decree of another state, the court
17-5 may decline to exercise its jurisdiction if just and proper under
17-6 the circumstances.]
17-7 [(c) In an appropriate case, a court dismissing a petition
17-8 under this section may charge the petitioner with necessary travel
17-9 and other expenses, including attorney's fees, incurred by other
17-10 parties or their witnesses.]
17-11 [Sec. 152.009. INFORMATION UNDER OATH TO BE SUBMITTED TO THE
17-12 COURT. (a) Unless all the contestants are residing in this state,
17-13 every party in a custody proceeding in the party's first pleading
17-14 or in an affidavit attached to that pleading shall give information
17-15 under oath as to the child's present address, the places where the
17-16 child has lived within the last five years, and the names and
17-17 present addresses of the persons with whom the child has lived
17-18 during that period. In this pleading or affidavit every party shall
17-19 further declare under oath whether the party:]
17-20 [(1) has participated (as a party, as a witness, or in
17-21 any other capacity) in any other litigation concerning the custody
17-22 of the same child in this or any other state;]
17-23 [(2) has information of any proceeding concerning the
17-24 child pending in a court of this or any other state; and]
17-25 [(3) knows of any person not a party to the
17-26 proceedings who has physical custody of the child or claims to have
17-27 custody or visitation rights with respect to the child.]
17-28 [(b) If the declaration as to any of the items in Subsection
17-29 (a) is in the affirmative, the declarant shall give additional
17-30 information under oath as required by the court. The court may
17-31 examine the parties under oath as to details of the information
17-32 furnished and as to other matters pertinent to the court's
17-33 jurisdiction and the disposition of the case.]
17-34 [(c) Each party has a continuing duty to inform the court of
17-35 any custody proceeding concerning the child in this or any other
17-36 state of which the party obtained information during the
17-37 proceeding.]
17-38 [Sec. 152.010. ADDITIONAL PARTIES. (a) If the court learns
17-39 from information furnished by the parties under Section 152.009 or
17-40 from other sources that a person not a party to the custody
17-41 proceeding has physical custody of the child or claims to have
17-42 custody or visitation rights with respect to the child, it shall
17-43 order that the person:]
17-44 [(1) be joined as a party; and]
17-45 [(2) be notified of the pendency of the proceeding and
17-46 of the person's joinder as a party.]
17-47 [(b) If the person joined as a party is outside this state,
17-48 the person must be served with process or otherwise notified in
17-49 accordance with Section 152.005.]
17-50 [Sec. 152.011. APPEARANCE OF PARTIES AND CHILD. (a) The
17-51 court may order any party to the proceeding who is in this state to
17-52 appear personally before the court. If that party has physical
17-53 custody of the child, the court may order that the party appear
17-54 personally with the child.]
17-55 [(b) If a party to the proceeding whose presence is desired
17-56 by the court is outside this state, with or without the child, the
17-57 court may order that the notice given under Section 152.005 include
17-58 a statement directing that party to appear personally, with or
17-59 without the child, and declaring that failure to appear may result
17-60 in a decision adverse to that party.]
17-61 [(c) If a party to the proceeding who is outside this state
17-62 is directed to appear under Subsection (b) or desires to appear
17-63 personally before the court, with or without the child, the court
17-64 may require another party to pay to the clerk of the court travel
17-65 and other necessary expenses of the party appearing and of the
17-66 child if just and proper under the circumstances.]
17-67 [Sec. 152.012. BINDING FORCE AND RES JUDICATA EFFECT OF
17-68 CUSTODY DECREE. A custody decree of a court of this state that has
17-69 jurisdiction under Section 152.003 binds all parties who have been
18-1 served in this state or notified in accordance with Section 152.005
18-2 or who have submitted to the jurisdiction of the court and who have
18-3 been given an opportunity to be heard. As to these parties, the
18-4 custody decree is conclusive as to all issues of law and fact
18-5 decided and as to the custody determination made, unless and until
18-6 that determination is modified.]
18-7 [Sec. 152.013. RECOGNITION OF OUT-OF-STATE CUSTODY DECREES.
18-8 The courts of this state shall recognize and enforce an initial or
18-9 modification decree of a court of another state that had assumed
18-10 jurisdiction under statutory provisions substantially in accordance
18-11 with this chapter or that was made under factual circumstances
18-12 meeting the jurisdictional standards of this chapter, so long as
18-13 the decree has not been modified in accordance with jurisdictional
18-14 standards substantially similar to those of this chapter.]
18-15 [Sec. 152.014. MODIFICATION OF CUSTODY DECREE OF ANOTHER
18-16 STATE. (a) If a court of another state has made a custody decree,
18-17 a court of this state may not modify the decree unless:]
18-18 [(1) it appears to the court of this state that the
18-19 court that rendered the decree does not have jurisdiction under
18-20 jurisdictional prerequisites substantially in accordance with this
18-21 chapter or has declined to assume jurisdiction to modify the
18-22 decree; and]
18-23 [(2) the court of this state has jurisdiction.]
18-24 [(b) If a court of this state is authorized under Subsection
18-25 (a) and Section 152.008 to modify a custody decree of another
18-26 state, it shall give due consideration to the transcript of the
18-27 record and other documents of all previous proceedings submitted to
18-28 it in accordance with Section 152.022.]
18-29 [Sec. 152.015. FILING AND ENFORCEMENT OF CUSTODY DECREE OF
18-30 ANOTHER STATE. (a) On payment of proper fees, a certified copy of
18-31 a custody decree of another state may be filed in the office of the
18-32 clerk of any district court or other appropriate court of this
18-33 state. The clerk shall treat the decree in the same manner as a
18-34 custody decree of a district court or other appropriate court of
18-35 this state. A custody decree filed under this section has the same
18-36 effect and shall be enforced in the same manner as a custody decree
18-37 rendered by a court of this state.]
18-38 [(b) A person whose violation of a custody decree of another
18-39 state makes it necessary to enforce the decree in this state may be
18-40 required to pay necessary travel and other expenses, including
18-41 attorney's fees, incurred by the party entitled to the custody or
18-42 the party's witnesses.]
18-43 [Sec. 152.016. REGISTRY OF OUT-OF-STATE CUSTODY DECREES AND
18-44 PROCEEDINGS. The clerk of each district court or other appropriate
18-45 court shall maintain a registry in which the clerk shall enter:]
18-46 [(1) certified copies of custody decrees of other
18-47 states received for filing;]
18-48 [(2) communications as to the pendency of custody
18-49 proceedings in other states;]
18-50 [(3) communications concerning a finding of
18-51 inconvenient forum by a court of another state; and]
18-52 [(4) other communications or documents concerning
18-53 custody proceedings in another state that may affect the
18-54 jurisdiction of a court of this state or the disposition to be made
18-55 by it in a custody proceeding.]
18-56 [Sec. 152.017. CERTIFIED COPIES OF CUSTODY DECREE. The
18-57 clerk of the district court or other appropriate court of this
18-58 state, at the request of the court of another state or at the
18-59 request of a person who is affected by or has a legitimate interest
18-60 in a custody decree, shall, on payment of proper fees, certify and
18-61 forward a copy of the decree to that court or person.]
18-62 [Sec. 152.018. TAKING TESTIMONY IN ANOTHER STATE. In
18-63 addition to other procedural devices available to a party, a party
18-64 to the proceeding or a guardian ad litem or other representative of
18-65 the child may adduce testimony of witnesses, including parties and
18-66 the child, by deposition or otherwise, in another state. The court
18-67 on its own motion may direct that the testimony of a person be
18-68 taken in another state and may prescribe the manner in which and
18-69 the terms on which the testimony shall be taken.]
19-1 [Sec. 152.019. HEARINGS AND STUDIES IN ANOTHER STATE; ORDERS
19-2 TO APPEAR. (a) A court of this state may request the appropriate
19-3 court of another state to hold a hearing to adduce evidence, to
19-4 order a party to produce or give evidence under other procedures of
19-5 that state, to have social studies made with respect to the custody
19-6 of a child involved in proceedings pending in the court of this
19-7 state, and to forward to the court of this state certified copies
19-8 of the transcript of the record of the hearing, the evidence
19-9 otherwise adduced, or any social studies prepared in compliance
19-10 with the request. The cost of the services may be assessed against
19-11 the parties or, if necessary, ordered paid by the state as costs of
19-12 court.]
19-13 [(b) A court of this state may request the appropriate court
19-14 of another state to order a party to custody proceedings pending in
19-15 the court of this state to appear in the proceedings and, if that
19-16 party has physical custody of the child, to appear with the child.
19-17 The request may state that travel and other necessary expenses of
19-18 the party and of the child whose appearance is desired will be
19-19 assessed against another party or will otherwise be paid.]
19-20 [Sec. 152.020. ASSISTANCE TO COURTS OF OTHER STATES. (a)
19-21 On request of the court of another state, the courts of this state
19-22 that are competent to hear custody matters may order a person in
19-23 this state to appear at a hearing to adduce evidence or to produce
19-24 or give evidence under other procedures available in this state or
19-25 may order social studies to be made for use in a custody proceeding
19-26 in another state. A certified copy of the transcript of the record
19-27 of the hearing or the evidence otherwise adduced and any social
19-28 studies prepared shall be forwarded by the clerk of the court to
19-29 the requesting court.]
19-30 [(b) A person in this state may voluntarily give the
19-31 person's testimony or statement in this state for use in a custody
19-32 proceeding outside this state.]
19-33 [(c) On request of the court of another state, a competent
19-34 court of this state may order a person in this state to appear
19-35 alone or with the child in a custody proceeding in another state.
19-36 The court may condition compliance with the request on assurance by
19-37 the other state that state travel and other necessary expenses will
19-38 be advanced or reimbursed.]
19-39 [Sec. 152.021. PRESERVATION OF DOCUMENTS FOR USE IN OTHER
19-40 STATES. In a custody proceeding in this state, the court shall
19-41 preserve the pleadings, orders, and decrees, a record that has been
19-42 made of its hearings, social studies, and other pertinent documents
19-43 until the child reaches 18 years of age or in accordance with the
19-44 law of this state. On appropriate request of the court of another
19-45 state and payment of proper fees, the court shall forward to the
19-46 other court certified copies of the documents.]
19-47 [Sec. 152.022. REQUEST FOR COURT RECORDS OF ANOTHER STATE.
19-48 If a custody decree has been rendered in another state concerning a
19-49 child involved in a custody proceeding pending in a court of this
19-50 state, the court of this state on taking jurisdiction of the case
19-51 may request of the court of the other state a certified copy of the
19-52 transcript of a court record and other documents listed in Section
19-53 152.021.]
19-54 [Sec. 152.023. INTERNATIONAL APPLICATION. The general
19-55 policies of this chapter extend to the international area. The
19-56 provisions of this chapter relating to the recognition and
19-57 enforcement of custody decrees of other states apply to custody
19-58 decrees and decrees involving legal institutions similar in nature
19-59 to custody institutions rendered by appropriate authorities of
19-60 other nations if reasonable notice and opportunity to be heard were
19-61 given to all affected persons.]
19-62 [Sec. 152.024. PRIORITY. On the request of a party to a
19-63 custody proceeding that raises a question of existence or exercise
19-64 of jurisdiction under this chapter, the case shall be given
19-65 calendar priority and handled expeditiously.]
19-66 [Sec. 152.025. SHORT TITLE. This chapter may be cited as
19-67 the Uniform Child Custody Jurisdiction Act.]
19-68 SECTION 2. This Act takes effect September 1, 1999, and
19-69 applies to a motion or other request for relief made in a child
20-1 custody proceeding or to enforce a child custody determination that
20-2 is commenced on or after that date. A motion or other request for
20-3 relief made in a child custody proceeding or to enforce a child
20-4 custody determination that was commenced before the effective date
20-5 of this Act is governed by the law in effect at the time the motion
20-6 or other request was made, and the former law is continued in
20-7 effect for that purpose.
20-8 SECTION 3. The importance of this legislation and the
20-9 crowded condition of the calendars in both houses create an
20-10 emergency and an imperative public necessity that the
20-11 constitutional rule requiring bills to be read on three several
20-12 days in each house be suspended, and this rule is hereby suspended.
20-13 * * * * *