International Family Law: Necessity of Subject Matter Jurisdiction in Texas

In international family law cases, parents frequently run into jurisdictional issues as to which court, i.e., Texas or an international court has jurisdiction to hear a custody case. Whether in a divorce, modification or enforcement action, in Texas the court hearing the custody case must have subject matter jurisdiction.

Section 152.201 of the Texas Family Code, - INITIAL CHILD CUSTODY JURISDICTION.

states as follows:

(a) Except as otherwise provided in Section 152.204, a court of this state has jurisdiction to make an initial child custody determination only if:

(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(2) a court of another state does not have jurisdiction under Subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 152.207 or 152.208, and:
(A) the child and the child's parents, or the child and at least one parent or a person acting

as a parent, have a significant connection with this state other than mere physical presence;

and
(B) substantial evidence is available in this state concerning the child's care, protection,

training, and personal relationships;

(3) all courts having jurisdiction under Subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 152.207 or 152.208; or

(4) no court of any other state would have jurisdiction under the criteria specified in

Subdivision (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

In the case of ANA MARIA TARQUIS ALFONSO v. MICHAEL SKADDEN, the courts delt with the issue of whether the Texas court had subject matter jurisdiction in a divorce decree that was sought to be enforced four years after an alleged default.

The fact of the case are as follows:

Michael Skadden and Ana Maria Tarquis Alfonso were married in Houston in 1991. In March 1999, Tarquis filed for divorce in Spain, and one month later Skadden (a Houston lawyer affiliated with a Madrid firm) filed for divorce in Harris County, Texas. Each of the parties claimed they were not served in the other’s suit, although Skadden appeared by attorney in Spain and Tarquis was served by publication. When Tarquis failed to appear in Texas, the trial court granted default, divided the property, named both parents managing conservators of their only child, entered a standard possession order, and ordered Skadden to pay child support. By contrast, the Spanish court granted sole custody to Tarquis, denied visitation to Skadden on the basis he had no relationship with the child (Skadden admits he has not seen their child since 1998), and also ordered Skadden to pay child support.

Four years and three months after the Texas decree was signed, Skadden sought to enforce it. Tarquis answered and argued the 1999 judgment was void due to lack of personal jurisdiction because she had not been served, and lack of subject-matter jurisdiction because Texas was not the child’s home state. The district judge — who had heard the 1999 case as an associate judge and recommended the divorce decree — reviewed the 1999 file, heard evidence, and then denied enforcement, finding the absence of an appointed ad litem or statement of evidence rendered service by publication improper. See Tex. R. Civ. P. 244.

While Skadden argued he never had proper notice or a hearing in Spain, his recognition of those proceedings established that Spanish courts had not declined jurisdiction. The trial court refused to enforce the Harris County decree on the basis of lack of subject matter jurisdiction. On appeal, the Texas Supreme Court agreed with the trial court. Subject-matter jurisdiction cannot be waived, and can be raised at any time. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004). Because the trial court lacked subject-matter jurisdiction to enter the custody provisions in the 1999 divorce decree, it properly refused to enforce that portion of the decree.