Case Dismissed Late in the Game for Lack of Child Custody Jurisdiction

Texas was the forum for a factually complicated, aggressively litigated case that painfully illustrates an important legal principle.

In the few years that they were married, the mother and father and, later, their baby, “moved” from country to country every few months, including a couple of months, here and there, spent in Texas. Most of the child’s short life had actually been spent in the country of Belarus, where his maternal grandmother lived.

While the child was in Belarus, the father filed in Texas for annulment and (apparently) for visitation rights with the child. The mother did not participate in that proceeding and the annulment was granted.

Subsequently, the mother asserted that Texas did not have jurisdiction over the child but she requested a new trial. (The report does not reconcile these two inconsistent positions; a reasonable speculation would be that the mother requested a new trial as her first choice for relief but, strictly as a fallback position if that were denied, she alternatively requested dismissal for lack of jurisdiction over the child.)

Interestingly, the mother was granted a new trial and there was no report of any ruling / finding / opinion /conclusion whatsoever regarding jurisdiction of the child.

Both mother and father fully participated in the second trial. The court thereafter granted primary custody to the mother and visitation to the father and a divorce was granted.

Needless to say, the proceedings would typically have concluded here. But the father allegedly wrongfully kept the child after visitation and the mother had to bring additional proceedings for emergency orders for the child’s return.

Next, both the mother and the father each filed their own motions for a new trial.

Then, after all of the proceedings above, the father, for the first time, filed a motion to dismiss for lack of jurisdiction over the child.

It should be noted that jurisdiction over the child and jurisdiction over the divorce may, under certain circumstances, be different, meaning that, at a certain point in time, the same state may not be able to decide both matters.

It should also be noted that jurisdiction over a child is a type of jurisdiction that lawyers call subject matter jurisdiction. This type of jurisdiction is essential for a court to decide a case.

It’s about whether a court does or does not have the power to decide a case about a certain type of “thing”, or subject. If the court doesn’t have the power, it doesn’t. Period. No agreement or error by the parties can give the court more power than it has.

The trial court denied the father’s motion to dismiss – largely, it appears, because the father never returned the child as ordered and seemed to have brought the motion to dismiss out of “sour grapes”.

In reversing, the appellate court sympathized but, in essence, held that the father’s attitude and “error” could not confer more power on the Texas courts than they had. The Texas court just didn’t have power to make custody rulings about this child under the facts of this case and under the legal rules governing child custody jurisdiction.

As for the father making this last ditch argument after all of the litigation that had already gone on, the court held that an argument so fundamental that it goes to the heart of the court’s power to rule, can still be raised even at the eleventh hour.

And in Florida too, this type of fundamental argument can be made right to the bitter end of the case.

What may be most interesting about this case is that this rather obvious issue wasn’t raised much earlier in the game – even by the court itself.

Read more in this Texas Lawyer article.

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