Texas Divorce Attorney Blog
The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) governs which state’s courts have jurisdiction over an initial custody determination. Texas has codified the UCCJEA in Chapter 152 of the Texas Family Code. A Texas court has jurisdiction if Texas is the child’s “home state” when the proceeding commences or was the child’s home state within the six months before the proceeding commences and a parent still lives in Texas. Tex. Fam. Code § 152.201(a)(1). “Home state” is defined as the state where the child lived with a parent or person acting as such for the six months immediately before the custody proceeding commenced. If the child is less than six months old, the home state is where “the child lived from birth with a parent or a person acting as a parent.” Tex. Fam. Code § 152.102(7). The court that made the initial custody determination generally retains exclusive continuing jurisdiction over the custody determination. Generally, once a home state is determined, no other state has jurisdiction to make an initial custody determination.
A father challenged a court’s finding that Texas was the child’s home state in the six months before suit was filed and another state was the child’s current home state. The mother relocated with the child to Indiana when the child was about five months old. The father petitioned to adjudicate parentage in Harris County, Texas, about five months later.
The parents reached a mediated settlement agreement (“MSA”) that neither would pay child support at the time.
The trial court adjudicated the father to be the child’s father and appointed both parents joint managing conservators. The trial court found the child’s current home state was Indiana, but her home state in the six months before the suit was Texas. The court ordered the father to pay retroactive and monthly child support
Child’s Home State
On appeal, the father argued the trial court erred in finding the child’s home state was both Texas and Indiana. The appeals court agreed and determined only Texas was the child’s home state when the father’s petition was filed. The child was born August 22, 2019. The mother moved with her to Indiana in January 2020 when the child was about five months old. The father filed his petition on June 29, 2020. The appeals court noted this was the relevant date for determining the child’s home state.
The child had not lived in Indiana for six consecutive months as of that date, so Indiana could not be her home state. The six months immediately preceding the filing of the petition began on December 20, 2019. Texas was the child’s home state from the time she was born until she moved to Indiana with her mother around January 20.
The appeals court concluded that Texas courts had jurisdiction because Texas was the child’s home state in the six months before the father filed his custody suit and Indiana was not yet her home state. The trial court erred in determining Indiana was the child’s home state. The appeals court modified the order to delete that finding.
Child Support
The appeals court agreed with the father’s argument that there was not any evidence supporting the trial court’s finding his monthly net resources were $2,954.33. The father had testified he earned $2,000 per month and his most recent tax return showed an annual adjusted gross income of $22,000. He testified he worked odd construction jobs, so the number of jobs he did each year varied. He did not, however, provide an income range to allow the court to calculate an average. He did not testify about any other current sources of income. The mother did not present any evidence regarding his income.
The father did testify that he earned $40,000 per year at his previous job before he was laid off in 2019. The court did not, however, make a specific finding that he was intentionally unemployed or underemployed, so it could not base his obligation on his earning potential.
Although the trial court did not have to accept the father’s testimony that his monthly income was $2,000, there was no evidence supporting its finding his net monthly resources were $2,954.33. The appeals court concluded the trial court abused its discretion in determining an apparently arbitrary amount of monthly net resources. It reversed the part of the order stating his monthly child support obligations and remanded to the trial court to properly determine his net monthly resources and monthly child support.
Retroactive Child Support
The father also challenged the retroactive child support award when the parties had signed a mediated settlement agreement on August 10, 2020 stating, “Neither parent shall pay child support at this time[.]” The agreement stated it was the full agreement regarding the issues it address and resolved “FOR TEMPORARY ORDERS ONLY.”
In its final order, the trial court ordered the father to pay $15,644.00 in retroactive child support for the time between September 1, 2019 and April 1, 2022, which included the time during which the parents agreed not to pay child support.
The appeals court considered prior case law and concluded that the trial court did not abuse its discretion in ordering retroactive child support included a period covered by a temporary order.
The appeals court reversed the portions of the trial court’s order naming Indiana the child’s home state and setting forth the father’s monthly child support obligations, but affirmed the rest of the order.
Seek an Experienced Texas Family Law Attorney
Child custody matters can become complex when a parent moves out of the state with the child. If you do not have an existing custody order and believe your child’s other parent intends to move outside the state with the child, you should seek a skilled Texas family law attorney right away. Call McClure Law Group at 214.692.8200 for a consultation.