Wichita Falls Interstate Family Law

 

Interstate Family Law:

There are two interstate laws adopted by the State of Texas which are frequently used in Texas family law proceedings.

A.        UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA)

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) may be utilized either in an original suit or a modification or enforcement action. It applies only to the issues of custody and visitation and possession and does not apply to actions involving child support. As a result, personal jurisdiction over both parties is not required. The UCCJEA is a “status” adjudication.   A Texas court has jurisdiction to make an initial child custody determination (which also includes access and possession of the child) only if: (1) Texas is the state where the child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately prior to the filing of the child custody proceeding. If the child is less than 6 months of age, the child must have lived in Texas since birth with a parent or a person acting as a parent. This is referred to as the “home state of the child.”; (2) a court of another state does not have home state jurisdiction of the child or the court which has home state jurisdiction has declined to exercise jurisdiction on the basis that Texas is a more convenient forum; and, (3) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with Texas other than their mere physical presence and there is substantial evidence available in Texas concerning the child’s care, protection, training and personal relationships. Unless the provisions of temporary emergency jurisdiction are invoked, a Texas court may not modify a child custody determination made by a court of another state unless the Texas court has jurisdiction to make an initial custody determination and (1) the court of the other state determines it no longer has exclusive continuing jurisdiction or that a Texas court would be a more convenient forum or a Texas court 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.

Unless all parties reside in Texas when the child custody proceeding is filed, then each party, in its first pleading filed with the court, is required to submit an affidavit as to the child’s present address or whereabouts, the places the child has lived during the last 5 years, and the names and present addressees of the persons with whom the child has lived during that period. There are other requirements for the affidavit as well. Failure to file the affidavit may result in an abatement of the proceedings until the affidavit is filed.

The failure to comply with the provisions of the UCCJEA frequently arises. Mr. Sutherland has litigated many such cases and is familiar with the provisions of the UCCJEA.

B.        UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA)

The Uniform Interstate Family Support Act (UIFSA) pertains to both child support and spousal support obligations. As a result, personal jurisdiction is required over the person obligated to make the payments (the “Obligor” ). The question of a child support obligation cannot be joined with a complaint about lack of visitation in a UIFSA proceeding.

A UIFSA case may be an original suit or it may be an enforcement or modification proceeding. However, it is only used in situations in which the Obligor and Obligee (the person to whom the support is owed) do not both reside in Texas, however, either the Obligor or Obligee must reside here.

Texas may be the, the issuing state, that is the state in which the support obligation arises; the initiating state, the state from which proceeding is forwarded or in which a proceeding is filed for forwarding to the responding state; or, the responding state, the state in which a proceeding is filed or to which a proceeding is forwarded from the initiating state.

The UIFSA may be used either by the Office of the Attorney General of the State of Texas or by a private attorney. One purpose of the enactment of the UIFSA was to streamline the enforcement of child support obligations by eliminating the situation wherein a state would issue a child support order and send it to a sister state for enforcement only to have the sister state invoke its law and modify the order sent. Under the UIFSA, one state is designated as the state of continuing, exclusive jurisdiction, such that only one valid support order may be in effect.

Courts are instructed to permit an out-of-state party or witness to be deposed or to testify by telephone.

Once a registered support order is confirmed, it becomes immediately enforceable unless the respondent files a formal written objection within 20 days after notice of the order’s registration. It is extremely important to contact an attorney as soon as you receive notice that an order has been registered. Failure to object to the registration within the 20 day period allowed permits the order to be confirmed by operation of law.

If a Texas court is asked to enforce a sister state’s order for child or spousal support, it may do so in the same manner and subject to the same procedures as an order issued by a Texas court. The law of the state which issued the support order controls the nature, extent, amount and duration of current payments under a registered support order; the computation and payment of arrearages under the support order; and, the existence and satisfaction of other obligations under the support order. The Texas court cannot modify the support order of an issuing state unless the requirements of one of three statutes are met. In order to modify the support order issued by a sister state which is registered in this state, a Texas court must find: (1) the child, the obligee, who must be an individual, and the obligor do not reside in the issuing state; (2) the petitioner, who is seeking modification, must be a non-resident of Texas; and, (3) the respondent must be subject to personal jurisdiction in Texas OR Texas is the state of residence of the child or a party who is an individual is subject to personal jurisdiction in Texas and all individual parties have filed written consents with the issuing court that Texas is permitted to modify the support order and become the court of continuing, exclusive jurisdiction.

A second means by which a Texas court may modify a properly registered support order of a sister state occurs when all of the parties who are individuals reside in Texas and the child does not reside in the issuing state. If Texas assumes jurisdiction under this provision, Texas law will be applied to modify or enforce the order.

A third means by which a Texas court may modify a properly registered support order occurs when the order is one issued by a foreign country or political subdivsion that is a state, but not a sister state in the U.S., refuses to modify its order or under its law cannot modify its order, then, under those circumstances, a Texas court may assume jurisdiction to modify the child support order and bind all individuals subject to the personal jurisdiction of the Texas court regardless of whether: (1) consent to modify the order has been given in writing to the court which issued the order; or, (2) the individual seeking the modification is a resident of Texas or of the foreign country or political subdivision. Should Texas assume jurisdiction under this provision, the order issued by the Texas court becomes the controlling order.