A court’s ability to exercise international child custody on an emergency basis is in the news after a father requests a Texas court to exercise jurisdiction over his nine-year-old child and return her after she was removed from Mexico by the Mother.

 

Adiós México

A Mexican father filed a case in Texas alleging his child lived her entire life in Mexico, that Mexico was her home state, and that the mother removed the child to Texas without his consent. The father argued at trial that the child was in the United States on a tourist visa, enrolled in school in a manner inconsistent with that visa, the mother had uncertain immigration status, she’d been arrested in Texas, and there were custody proceedings already pending in Mexico.

He asked the Texas court to name him primary conservator, authorize the child’s return to Mexico, consider abduction-prevention measures, order child support, and issue a writ of attachment for the child.

The mother argued that Mexico was the child’s home state, that two custody proceedings were pending in Mexico, and that no Mexican court had declined jurisdiction. The Texas trial court nevertheless denied her jurisdictional challenge and entered an order exercising “temporary emergency jurisdiction.”

The family court allowed the father to take immediate possession of the child, return the child to Mexico, and present the child to the Mexican courts. The next day, the court issued a writ of attachment. But then the mother filed for mandamus relief in the appellate court, which stayed the trial court’s order, then conditionally granted mandamus

Florida UCCJEA Emergency Jurisdiction

I have written and spoken on many issues related to the UCCJEA as a family law attorney. Later in the year I will be presenting an introduction to the UCCJEA for foreign lawyers in Madrid, Spain.

The UCCJEA is a uniform act created to avoid jurisdictional competition and conflict with other courts in child custody matters. The UCCJEA also promotes cooperation with other courts and ensures that a custody decree is rendered in the state which is in a superior position to decide the best interest of the child. The UCCJEA helps to facilitate enforcement of custody decrees; and has the aspirational goal of promoting uniformity of the laws governing custody issues.

Under the UCCJEA one state is a child’s home state, and the home state keeps exclusive jurisdiction to modify the custody arrangement unless, for example, the child is another state and there is an emergency

The UCCJEA provides for temporary emergency jurisdiction over child custody “if the child is present in this state and … it is necessary in an emergency to protect the child because the child … is subjected to or threatened with mistreatment or abuse.”

¿Cuándo volverás a México?

The appellate court found there was no evidence that the child had been abandoned, and no evidence of an emergency involving mistreatment or abuse. Importantly, the court said the UCCJEA’s emergency provision does not convert immigration concerns, possible deportation, separation from a parent, criminal charges, or lack of contact into “mistreatment or abuse” without more.

The court also noted a procedural problem. When a court exercises temporary emergency jurisdiction while another state or country has jurisdiction, a family trial court has to determine whether there is a prior custody determination and must communicate with the court having jurisdiction which was not done here.

Temporary emergency jurisdiction is an important aspect to intervene when a child is in a state and is subjected to or threatened with mistreatment or abuse. But if the case facts don’t show abandonment, mistreatment, abuse, or a concrete threat of immediate harm, a writ of attachment and return order may be vulnerable on appeal.

The Texas Court of Appeals opinion is here.