Texas Husband and Wife have five Children born during their long term marriage.
Wife takes the Children on vacation to Puerto Rico in June of 2009. Husband expects their return in August of that year.
But then Wife advises Husband that she and the Children will remain in Puerto Rico.
Husband waits until April of 2010 and only then files in Texas for divorce and a child custody determination.
In June of 2010, Wife seeks a divorce and child custody determination in Puerto Rico.
Wife participates by phone in the Texas family court case, seeking a continuance and objecting to the court’s exercise of personal jurisdiction over her and child custody subject matter jurisdiction over the Children under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Texas divorce court denies the continuance and advises Wife that the Texas trial will go forward immediately, with or without her.
The Texas divorce court grants Husband a divorce and divides the marital property. The Texas family court also exercises jurisdiction over the Children under the UCCJEA, citing exigent circumstances and consent by Wife, awards Husband primary custody of Children and orders return of the Children to Texas.
At about the same time, the Puerto Rican family court exercises jurisdiction over Children over Husband’s objection, based on the fact that Children have lived in Puerto Rico for over a year and that the Texas family court has implicitly recognized that it does not have jurisdiction over the Children in a previous child support order.
Wife appeals the Texas divorce court judgment, again challenging both its exercise of personal jurisdiction over her and of child custody subject matter jurisdiction over the Children under the UCCJEA.
On appeal, the Texas appellate court finds that Wife waived her objection to the Texas family court’s exercise of personal jurisdiction over her by fully participating in the divorce issues before the divorce court at trial. Legally, a party may consent to a court’s exercise of personal jurisdiction over them, even if the court would not otherwise have personal jurisdiction.
Accordingly, the Texas appellate court affirms the Texas family court’s entry of Husband and Wife’s divorce and division of their marital property.
But the Texas family court’s exercise of child custody subject matter jurisdiction under the UCCJEA is another story.
Legally, subject matter jurisdiction cannot be consented to, or waived. If a court lacks it, as a matter of law, the court has no power or authority to proceed.
And the Texas appellate court finds that that was the case here. The home state of the Children had become Puerto Rico under the UCCJEA, where they had lived for more than six months prior to filing of either the Puerto Rican or Texas child custody cases.
The Puerto Rican family court never declined to exercise child custody subject matter jurisdiction over Children under the UCCJEA. And the circumstances in Texas did not fall within the strict requirements for exercise of temporary emergency jurisdiction, because the Children were not in Texas.
Therefore, the Texas appellate court dismisses all child custody orders entered and rulings made by the Texas family court under the UCCJEA, because the Puerto Rican family court has child custody subject matter jurisdiction over Children.
Read more in this Texas appellate court family law opinion