Jurisdictional Issues and Special Considerations
The Abuse & Neglect Case: A Practitioner’s Guide – Appendix: Jurisdictional Issues and Special Considerations
Jurisdictional Issues and Special Considerations:
Local, National and International
2009 Texas Training Series Practitioner’s Guide, Appendix
Charles G. Childress
Considering the term “jurisdiction.”
The term “jurisdiction” means different things in different contexts. The “judicial power” of Texas is specifically vested in named courts, including District Courts by the Texas Constitution,[1] which provides that“District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.”[2] Although the Texas Legislature has designated some District Courts as specialized family courts, they all retain the general jurisdiction conferred by the Constitution. It should be kept in mind that these Constitutional powers extend beyond the bounds of the Family Code; thus, the question should not be “what gives the District Court jurisdiction to do this?” but “what restricts the court’s jurisdiction?” On the other hand, County Courts at Law given family law jurisdiction are limited to the “prescribed jurisdiction” granted by the legislature.
The case law and legislation discussed here should be viewed in the light of the general principle that the “judicial power” extends to all cases, controversies, persons and governmental entities before the court or within reach of the court’s writ power, subject to restrictions on the exercise of that power imposed either by the courts themselves, by the state or federal constitutions, or by statute.
Subject matter jurisdiction.
Subject matter jurisdiction is the power of a court to decide a particular type of case. For example, a statutory county court judge would have lacked subject matter jurisdiction of a suit challenging a fee, but since a statute provided that under the circumstances he was “sitting as a district court judge” in the case, hehad subject matter jurisdiction.[3]When the Family Code refers to a court with “jurisdiction to hear” a CPS suit “in the county in which the child is found,”[4] it is referring to the subject matter jurisdiction of the district court (or statutorily-empowered statutory county court) to hear family law cases, not to the question of whether a court should exercise its family law jurisdiction over a particular child or party. A Justice of the Peace, for example, never has family law jurisdiction, and no set of facts will permit a JP to determine custody or grant a divorce. Unfortunately, many appellate opinions use the term “subject matter jurisdiction” when discussing the restrictions on jurisdiction imposed by statutes intended to resolve jurisdictional conflicts within or between states.
As the United States Supreme Court observed in 1947, “[c]onflicts arising out of family relations raise problems and involve considerations very different from controversies to which [other litigation] give[s] rise,” courts should take care that the use of “the same legal words and phrases” in the context of family law “not to obliterate the great difference between the interests affected by” family law and the interests affected by disputes over property.[5]
In personam jurisdiction.
In order to render a judgment enforceable against the person of the defendant, a court must have jurisdiction over that person. For example, in order to impose a child support obligation on a parent, the court must, as a matter of federal constitutional law, have jurisdiction over the person of the defendant.[6] A court may exercise personal jurisdiction over a respondent who is a resident or domiciliary of Texas with proper service anywhere in the state or beyond; if the person is not a resident or domiciliary, the court may exercise personal jurisdiction if (1) the person is personally served with citation in this state; (2) the person submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; (3) the child resides in this state as a result of the acts or directives of the person; (4) the person resided with the child in this state; (5) the person resided in this state and provided prenatal expenses or support for the child; (6) the person engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse; (7) the person, as provided by Chapter 160: (A) registered with the paternity registry maintained by the bureau of vital statistics; or (B) signed an acknowledgment of paternity of a child born in this state; or (8) there is any basis consistent with the constitutions of this state and the United States for the exercise of the personal jurisdiction.[7] If there is a prior child support order in another state or another country that needs to be modified, the requirements of Chapter 159, the Uniform Interstate Family Support Act (UIFSA) must be met even if personal jurisdiction over the defendant is obtained.[8]
In rem or status jurisdiction.
If the subject matter or the suit is before the court and the defendant has been notified, or constructively notified, of the suit the court may be able to render an enforceable judgment without personal jurisdiction over the defendant. For example, the court may adjudicate title to property in Texas as part of a divorce, rule on the marital statusof the parties by granting dissolution, and determine custody of the children. However, the same court may not have jurisdiction to render a child support order unless long-arm facts are established or the defendant waives the issue of personal jurisdiction.[9] The court may adjudicate the status of the parent-child relationship—i.e. terminate parental rights—if the status jurisdiction requirements of Chapter 152, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) are met without obtaining personal jurisdiction over the parent.[10]
The exercise of status jurisdiction over child custody litigation has a long history in Texas.[11]Status jurisdiction with respect to children is, if anything, more expansive than with respect to real or personal property. As the Dallas Court of Appeals observed in the 1980 Perry v. Ponder case, a “child’s future cannot be left hanging in limbo in order to satisfy a [jurisdictional] theory developed in the context of money judgments.”[12] With a child, “some court must have jurisdiction to make a decision;”[13] “the inability of any state to make a binding adjudication” poses a greater threat to children’s welfare than “[t]he potential for conflicts between competing jurisdictions” because it “encourage[s] the parties to resort to self help, disregarding the children’s welfare.”[14]
Exercise of partial jurisdiction.
The Family Code specifically provides that a court may exercise jurisdiction over those parts of the suit for which it has authorityand dismiss other issues.[15] In other words, the court may determine conservatorship or terminate parental rights even if it lacks authority to establish or modify the support obligation of the defendant. Of course termination of parental rights may make the support obligation unenforceable, at least prospectively; however, since this result does not impose an additional personal obligation on the terminated parent there is no constitutional right under Kulko to insist on personal jurisdiction.
Jurisdiction when there is no prior order.
If there is no prior order and the child has been in Texas for six months,[16]the court with family jurisdiction where the child is found has plenary jurisdiction. There may, however, be a venue issue if the child does not reside in the county where “found” by CPS. Venue lies in the county where the child resides, and generally speaking that county is where the child’s parent lives, although different caretakers may sometimes establish the child’s residence.[17]If a suit for divorce is on file in a different county, the suit should be transferred to that county.[18] However, the court hearing the case under Chapter 262 is not required to transfer the suit until a final order is rendered in the CPS case.[19] The court hearing the CPS case may, however, as a matter of discretion transfer the suit to the court hearing the divorce suit or to another court in which a suit affecting the parent child relationship is pending, even if there is not yet a final order in either court.[20]
Jurisdiction when there is a prior order in Texas.
It has always been difficult to ensure stability and safety for children when jurisdictional conflicts combine with already volatile family relationships. Not too many years ago, Texas allowed trial courts in different parts of the state to revisit custody orders with little regard for prior decisions. Before adoption of the Texas Family Code, which became effective on January 1, 1974, it was possible, and not uncommon, to re-litigate custody by filing or defending a habeas corpus proceeding in the “home town” of the dissatisfied non-custodial party to a prior order. The same problems existed in interstate cases, where the “home town” of one litigant was in a different state from that of the other.
Texas, and many other states adopted the concept of “Continuing Exclusive Jurisdiction” (CEJ), whereby the first court with jurisdiction to render a final order in a suit affecting the parent-child relationship for managing conservatorship, possessory conservatorship, possession and access or child support, retained control over the case unless the matter was properly “transferred” to another court. In Texas, if a court in which a suit is filed determines that another court has continuing exclusive jurisdiction of the child and the case has not been or cannot be transferred, the suit must be dismissed.[21] Of course, these rules could only control jurisdictional conflicts between Texas courts. Courts of other states could not be bound by Texas law.
Although the CEJ concept applies to child protective services suits, special provisions allow the CPS suits to proceed without undue difficulty in spite of the existence of a court of continuing jurisdiction. The court hearing the case under Chapter 262 is granted concurrent jurisdiction with the CEJ courtthrough a specific exception in the CEJ statute.[22]
The Family Code requires the department, after the full adversary hearing, to request identification of a court of continuing jurisdiction if the court has rendered a temporary order.[23] If a court of continuing exclusive jurisdiction is identified, the Chapter 262 court on the motion of any party or on its own motion may: (1)transfer the suit to the court of continuing, exclusive jurisdiction, if any; (2)if grounds exist for mandatory transfer from the court of continuing, exclusive jurisdiction under Section 155.201, order transfer of the suit from that court; or (3)if grounds exist for transfer based on improper venue, order transfer of the suit to the court having venue of the suit under Chapter 103.[24]
Transfer is mandatory if the child has resided in the county where the Chapter 262 suit is filed for six months or longer.[25]Chapter 155 requires that a motion to transfer be filed (1) in the CEJ court, (2) with the initial pleadings or within the time for filing an answer.[26]However, “a motion to transfer relating to a suit filed under [Chapter 262] may be filed separately from the petition and is timely if filed while the case is pending.”[27]Chapter 155 also requires the CEJ court to order the transfer or, if a controverting affidavit is filed hold a hearing and issue an order.
When the motion to transfer alleges grounds for mandatory transfer, the Chapter 262 court, not the CEJ court holds the hearing and orders the transfer “in accordance with procedures provided by Chapter 155.”[28]The reference to Chapter 155 procedures means that a party opposing the transfer must file an affidavit challenging the factual statements of the motion to transfer.[29] Each party to a contested transfer motion is entitled to notice of not less than 10 days before the date of the hearing.[30] If no controverting affidavit is filed, the court should grant the transfer without a hearing.[31]
The Chapter 262 court’s transferorder should direct the clerk of the CEJ court to transfer the files and child support registry records in accordance with Chapter 155.[32] Any “party may file the transfer order with the clerk of the court of continuing, exclusive jurisdiction.On receipt and without a hearing, the clerk of the court of continuing, exclusive jurisdiction shall transfer the files as provided by this subchapter.”[33]
If the transfer is not mandatory under the code, the CEJ court may still consider a motion to transfer on discretionary grounds. The court exercising CEJ also has broad discretion to transfer the case to another county even if “it is shown that the child has resided in [the other] county for less than six months at the time the proceeding is commenced,” for “the convenience of the parties and witnesses and in the interest of justice.”[34] The discretion to send the case elsewhere lies with the court having primary, not “emergency” jurisdiction. The discretion permitted by this provision is seldom exercised in Texas; most cases will be decided on the basis of the child’s actual residence for the six months prior to commencement of the proceeding.
One final difference between the transfer rules outside the CPS system and those under Chapter 262 relates to divorces. Normally, a SAPCR suit must be transferred on motion to the court in which a divorce suit has been filed. Chapter 262 provides that: “Notwithstanding Sections 6.407 and 103.002, a court exercising jurisdiction under this chapter is not required to transfer the suit to a court in which a parent has filed a suit for dissolution of marriage before a final order for the protection of the child has been rendered under Subchapter E, Chapter 263.”[35] In other words, the SAPCR portion of the suit for dissolution must wait for final action by the Chapter 262 court, which may include termination of parental rights. If parental rights are terminated in the CPS suit, the children should be dismissed from the divorce case.
Temporary orders under Chapter 262 are valid, and a final order rendered by a court with a BVS report showing no other court has continuing, exclusive jurisdiction is protected by statute.[36] However, a final order rendered without a clean report from the bureau of vital statistics is voidable on a showing that a court other than the court that rendered the order had continuing, exclusive jurisdiction.[37] This possibility makes it critical for all attorneys in the CPS suit to ensure the continuing jurisdiction issue is properly addressed; a void order benefits neither the child nor the parties.
Jurisdiction involving other states or foreign countries.
Attempts to resolve jurisdictional conflicts between states included the Uniform Child Custody Jurisdiction Act (UCCJA), promulgated in 1968 by the National Conference of Commissioners on Uniform State Laws and adopted by all 50 states, the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands. Although the UCCJA solved some of the problems relating to interstate custody litigation, it failed to specify a clear priority for the various bases it provided to assert jurisdiction and did not include a “continuing jurisdiction” provision. As a result, courts in different states could, and did, make conflicting claims of jurisdiction over the same child.
The Congress of the United States stepped in with the Parental Kidnapping Prevention Act (PKPA) in 1981, directing the states to give “full faith and credit” to orders rendered in compliance with its principles. Those principles included top priority for “home state” jurisdiction for an initial child custody order. As defined in the federal statute, “home state” means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period.[38]This definition was included almost verbatim in the new Uniform Child Custody Jurisdiction and Enforcement Act.
Under the UCCJEA, “home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with a parent or a person acting as a parent. A period of temporary absence of a parent or a person acting as a parent is part of the period.[39]
The PKPA also provides that the state in which the child has resided for six months has the right to exercise its jurisdiction to the exclusion of a state in which the child had not resided for the required time. Perhaps more important, the PKPA provided for recognition of the continuing, exclusive jurisdiction of the state that made an initial custody determination under this “home state” provision, so long as that state claimed such jurisdiction and the child or any contestant continued to reside in that state.[40] Thus, the PKPA encouraged the spread of the continuing jurisdiction concept and the subsequent adoption of the UCCJEA.