In re Forlenza

Supreme Court of Texas · Family Law

Family LawChild CustodyUCCJEAJurisdictionUCCJEAexclusive continuing jurisdictionchild-custody modificationsignificant connection

Facts

A Texas court made the initial child-custody determination and later entered an agreed modification order giving Robert primary custody and the right to establish the children's residence. Over the next five and one-half years, Robert moved with the children from Texas to Washington, Ohio, Virginia, and then Colorado, while Ann remained in Texas. In 2001, Ann filed a modification suit in Texas after difficulties exercising possession and sought to prevent Robert from moving the children outside the United States. By the commencement of the proceeding, the children had visited Texas several times, including extended summer visits with Ann, and maintained relationships with Ann and other relatives living in Texas.

Issue

Whether, at the commencement of the mother's 2001 modification proceeding, the Texas trial court retained exclusive continuing jurisdiction under Texas Family Code section 152.202(a)(1). More specifically, the question was whether the children had a significant connection with Texas or substantial evidence remained available in Texas concerning their care, protection, training, and personal relationships.

Rule

Under Texas Family Code section 152.202(a)(1), a Texas court that made the initial child-custody determination retains exclusive continuing jurisdiction until a Texas court determines both that neither the child nor the child and a parent have a significant connection with Texas and that substantial evidence concerning the child's care, protection, training, and personal relationships is no longer available in Texas. Jurisdiction is assessed as of the commencement of the proceeding, and a party invoking exclusive continuing jurisdiction satisfies the initial burden by alleging that prior Texas custody orders conferred that jurisdiction.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A Dallas court entered the original custody order for Maya and Leo. Four years later, the children have lived with their father in Oregon, but their mother still lives in Texas; the children spend five weeks with her in Houston each summer and regularly see maternal cousins there. The mother files a modification petition in Texas, and the father argues Oregon has nearly all school and medical records.

How should the Texas court rule on its exclusive continuing jurisdiction?

Explanation. Under the majority rule, the decree-granting Texas court keeps exclusive continuing jurisdiction until a Texas court determines both that no significant connection remains and that substantial evidence is no longer available in Texas. Extended summer visitation and ongoing relationships with the mother and Texas relatives support a significant connection. The inquiry is not comparative, so the fact that Oregon may have more current records does not itself defeat Texas jurisdiction. (Derived from In re Forlenza (n.d.).)