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What is Jurisdiction? "Jurisdiction" is the power or authority of a court to make a judgment which affects the parties involved in the controversy before it, as well as the property of the parties. It is different than the legal concept of "venue" which decides where a case should be filed in a specific jurisdiction. In family courts this general definition applies with several subtle changes. As a general rule a Texas court may exercise jurisdiction over the parties to a divorce if at least one of the parties to the marriage has resided in Texas for at least six (6) months and has lived in the county where the divorce is filed for the last ninety (90) days before the filing. If the parties have children of the marriage, the court automatically has jurisdiction over children below the age of 18 years, and to some limited extent to children over the age of 18 years who suffer from an incapacitating mental or physical disability. Variations on this general rule exist for military personnel and spouses who may both reside outside of Texas on a temporary basis, to name but two exceptions. Minimum Contacts: For the court to exercise all of its jurisdiction, the other party, and/or the children, must have had "minimum contacts" with Texas. If the other party to the divorce, or if the children of the marriage, have not had "minimum contacts" with Texas, the court may not exercise jurisdiction over certain aspects of the parties' relationships. "Minimum contacts" is a very technical, constitutionally charged, and factually driven inquiry made by the court when its jurisdiction is challenged. Courts have found telephone calls into a state, doing business in a state even if the person is not located in that state, and visiting a state all have met the requirements of "minimum contacts." However, this inquiry is on a case-by-case basis. How Do You Challenge Jurisdiction? A party may waive the challenge and inadvertently or intentionally agree to the exercise of the court's jurisdiction over the parties and their property. In Texas, a unique sworn pleading entitled a "Special Appearance" is the means by which one challenges jurisdiction. If it is done wrong, or if it is denied, the party who has challenged the jurisdiction is now within the court's jurisdiction for all purposes. If the challenge is made to the manner in which a party has been served or given notice of the action, even if the Special Exception is sustained, the party has thereby entered an appearance in the court. As such, a party needs to warily enter into a jurisdictional challenge or it may be inadvertently waived. In the event a Texas court determines it does not have jurisdiction over the other spouse, the court may still grant a divorce. This is called a "status" determination or "status jurisdiction." It may also divide and award property located within the State of Texas. However, it may not award any property located outside of Texas and the rights to such property remains in issue and open-ended even after the signing of the divorce decree. What is Continuing Jurisdiction? Once a court exercises its jurisdiction over children in any proceeding, that court retains jurisdiction over the child until such time as the child turn eighteen(18) years of age, are emancipated as a minor, or another court accepts the jurisdiction over the child by operation of law. This jurisdiction is known as "continuing jurisdiction." If a child lawfully moves within the State of Texas from the county in which the divorce was granted or the order affecting the child was signed to another county in the state, and the child resides therein for more than six (6) months, the new county has jurisdiction over the child to enter such orders as are appropriate. However, the original county will retain its continuing jurisdiction until it transfers the case to the new county upon a motion properly made. What Happens If The Child Moves To Another State? Texas is a signatory to a uniform law adopted by most of the states. It is called the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). It provides various safeguards to avoid parental kidnaping, and the recognition and enforcement of "home state" continuing jurisdiction by the court which originally entered the decree or order in issue. It is a radical recent change in the law which limits a new state's modification of an existing home state order affecting the child. It makes exceptions to such jurisdiction in the event both parties move from the "home state" for the state in which the child has resided lawfully for the last six (6) months to exercise jurisdiction over the child. The law provides for actual telephone conferences by and between the judges to exchange pertinent information in determining the appropriate jurisdiction. This is a very technical area of the law beyond the scope of this general paper. Emergency Orders: A Texas court, pursuant to the UCCJEA, may enter an order for the immediate health and safety of the child even if it does not have continuing home state jurisdiction over the child. Such order lasts 90 days and may be modified as the home state takes jurisdiction over the matter and decides the existing issue in controversy. As a general rule the child must be located in Texas. Enforcement of Other State's Orders: As a signatory to the UCCJEA, Texas may not modify another state's orders affecting a child except for unique exceptions, and in the event of bona fide emergencies (and the latter then only for short duration). A sister-state order, pursuant to the US Constitution, is awarded "full faith and confidence," and is normally enforced as written. Texas will accept that state's order or judgment when properly presented and will grant whatever writs and processes are necessary to enforce that order or judgment. This includes the issuance of a writ of habeas corpus or writ of attachment. -- The Law Offices of Steven E. Rogers |