Help!! My Ex-Spouse Kidnapped my Child

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Divorce Lawyer in Spring TX– Each month I have a consult with at least one parent who has questions regarding their ex who has taken the kids and is refusing to return them.

One the questions I get is, “How do I protect myself and my children from my ex-spouse violating the custody agreement you agreed upon in court?” There is good news: your Houston divorce lawyer may be able to help you pinpoint risk factors and head off potential problems before they come up.

WHAT STATE HAS THE RIGHT TO MAKE ORDERS REGARDING MY CHILD?

The Woodlands Divorce Attorney– Under Texas Family Code 152.201 a new case can be established regarding a child if:

1. The State is the “Home State” of a child on the date the commencement of the proceeding.
2. A court of another state does not have Jurisdiction or has declined Jurisdiction

Under the Texas Family Code Section 152.102 Texas has defined “Home State” to mean “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.”

This means that if your child has lived in Texas for at least six months or if under six months old has lived in Texas since birth then Texas can make orders regarding that child so long as no other state has made prior orders regarding that child.

CAN A PARENT MOVE TO ANOTHER STATE AND MODIFY CUSTODY?

Spring TX Divorce Lawyer– If a Court has made an initial custody determination regarding a child as described above, then that Court has exclusive continuing Jurisdiction under Texas Family Code Section 152.202 until:

1. A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent, have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
2. A court of this state or a court of another state determines the child’s parents, and any person acting as a parent do not presently reside in this state.

A court of this state when deciding whether or not it can modify the order of another state looks to see if:

1. The Court of the other state determines it no longer has exclusive jurisdiction under section 152.202 or that a court of this state would be more convenient forum under Section 152.207 or
2. A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

PARENTAL KIDNAPPING PREVENTION ACT

Kingwood Divorce Attorney– The Parental Kidnapping Prevention Act of 1980 dictates that the child’s home state has jurisdiction over custody.

Most states follow a uniform law regarding the determination of appropriate state jurisdiction in custody matters known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and related statutes laws which enforce or set procedures regarding proper jurisdiction such as the Parental Kidnapping Prevention Act. Texas has adopted these statutes.

The Act states, among other things, that a court may rule on custody issues if the Child:

1. Has continually lived in that state for 6 months or longer
2. Was living in the state before being wrongfully taken elsewhere by a parent seeking custody in another state
3. Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state
4. Has been abandoned: or is safe in the current state, but could be in danger of neglect or abuse in the home state

ENFORCEMENT OF OTHER STATE’S CHILD CUSTODY DETERMINATIONS

Spring Divorce Lawyers– Under the Texas Family Code Section 152.303(a)., Texas courts shall recognize and enforce a child custody determination of a court of another state if the issuing state exercised jurisdiction. This is in compliance with the Parental Kidnapping Prevention Act.

Enforcement may be through:

1. A temporary visitation order
2. registration of the child custody determination (using procedures similar to those found in the Uniform Interstate Family Support Act),
3. through an expedited enforcement proceeding,
4. or through a warrant to take physical custody of a child.

Temporary Visitation

A Texas court may issue a temporary order enforcing the visitation provisions of an out of state order, even if it does not have jurisdiction to modify a child custody determination.

Registration of Child Custody Determination

Spring Divorce Lawyer– As in UIFSA, the UCCJEA provides for the registration of an out of state order that can be used to predetermine the enforceability of a custody determination. It may even be registered in Texas without a request for enforcement.

The registration process requires that a letter requesting the registration be filed, along with 2 copies of the determination to be registered and a statement made under oath that the order sought to be registered has not otherwise been modified.

Texas Family Code Section 152.305(a) provides that the name and address of the person seeking the registration, along with the name and address of any parent or person acting as a parent who has been awarded custody or visitation must be provided.

Once received, the registering court must file the determination as a foreign judgment and serve notice on those persons named, providing them with an opportunity to contest the registration.

The notice must advise the Respondents that the determination will be enforceable as of the

date of the registration, that should they wish to contest the registration, they must request a hearing within 20 days of service of the notice; and that failure to contest the registration will result in the child custody determination being confirmed and will preclude further contest of the order.

Texas Family Code Section 152.305(c). Once registered, the child custody determination can be enforced as if it was a child custody determination of Texas.

However, it remains a child custody determination of the issuing state and is not subject to modification except as under Section 152.203.

Expedited Enforcement Proceeding

Houston Divorce Lawyer– A petition for expedited enforcement must be verified, and certified copies, or copies of certified copies, of all orders sought to be enforced, as well as any order confirming registration of the order, must be attached to the petition… Continue Reading