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The Texas Family Code prioritizes home-state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Tex. Fam. Code Ann. § 152.001-152.317.
The parents, Russell Powell and Sonia Powell, and child, D.B.P., had been living in Tennessee for almost a year when the mother and child moved back to Texas. Within a month, Sonia filed for divorce in Texas and requested management of conservatorship of D.B.P. She asserted in her petition that she had been a domiciliary of Texas for the preceding six-month period and a resident of Hardin County for the preceding 90-day period. The trial court issued temporary orders appointing Sonia temporary managing conservator of D.B.P. Subsequently, Russell filed for divorce in Tennessee. The Tennessee court issued a temporary parenting plan awarding custody of D.B.P. to Russell. The court also found that Tennessee has jurisdiction over D.B.P. Russell then filed in the Texas proceeding a plea in abatement and a motion to dismiss for lack of jurisdiction arguing that the Tennessee Court secured service of citation first, giving it exclusive jurisdiction over the divorce action. He further claimed that abatement and dismissal were required because neither he nor Sonia had been a domiciliary of Texas for the six months preceding the filing of this suit or a resident of Hardin County for ninety days preceding the suit, as required by the Texas Family Code. The trial court denied Russell's plea in abatement. Russell sought mandamus relief, asking the court of appeals to vacate the trial court's order and to transfer the case to the Chancery Court of Hawkins County, Tennessee. The court of appeals denied mandamus relief, holding that the trial court did not abuse its discretion in retaining jurisdiction. Russell appealed.
Did the Texas trial court have jurisdiction over the child-custody case?
The court held that the Texas trial court improperly exercised jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Tex. Fam. Code Ann. § 152.001-152.317. Texas was not the child's "home state" under Tex. Fam. Code Ann. §§ 152.201(a)(1), 152.102(7) because the child lived in Tennessee with his parents for at least six consecutive months immediately before the child-custody proceeding was commenced. In reaching that conclusion, the court rejected the mother's argument that her intent to return to Texas while in Tennessee controlled the "home state" determination. In determining where a child lived for purposes of establishing home-state jurisdiction, the trial court was to consider the child's physical presence in a state. The court disapproved In re Estes, 153 S.W.3d 591 (Tex. App. 2004), to the extent that it conflicted with that holding. The court noted that the Tennessee court would have the flexibility to avert potential injustice under an inconvenient-forum provision.