How To Change Jurisdiction for Child Custody

Transferring Child Custody to Another State

Child Custody Jurisdiction ChangeSometimes Parents that received prior custody orders in other states move to Texas because of job relocation, schooling and other reasons. The first thing they often try to do is transfer jurisdiction over their children from their former state to Texas.  They may also seek to modify those orders once they are in Texas, but child custody law differs from state to state. The other parent may also wish to prevent you from moving in the first place by filing an application for a temporary restraining order.


In this situation, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) can offer some relief.  UCCJEA is a federal legislation which ensures that states address relevant issues in a uniform manner. This act requires that one state be chosen as the minor’s home state based on qualifying criteria. The chosen state has primary jurisdiction over the child custody case. However, there are some states that have not adopted this legislation.

How Home State Jurisdiction is Awarded

According to the UCCJEA, home state jurisdiction is often awarded to the state where the child has resided for at least six months. However, this does not work in a situation where a child is less than 6 months old. So the alternative is giving the home state jurisdiction to the state where custody orders were issued by a court. For example, if you moved to Texas with your children after your divorce was finalized in Utah, you can only file to modify child custody if you have been living in Texas for 6 months.  Other factors considered when awarding a state jurisdiction include:

  • The state where the child was living before they were taken by a parent to another state
  • The state where the child developed relationships with people like teachers, relatives, classmates and more
  • The state where the child was abandoned
  • The state where the child is safe from threat of abuse or violence

There are cases where the other state does not challenge jurisdiction in a Texas child custody case. This means that the Texas court automatically get jurisdiction and can modify child custody.

Challenges to Modification

Even if you have been living in Texas for six months, the other parent can still challenge your efforts to modify jurisdiction if that parent lives in the original state. This can complicate the case to an extent where the courts from both states may have to work together, and decide which state will be better for the child’s well being.  The courts will only award jurisdiction to the state where the child’s best interests are likely to be catered for. So don’t expect the court to grant jurisdiction merely for child support purposes. However, if you want jurisdictions changed to Texas because that will allow the child to get specialized medical care or counseling, then you have a higher chance of winning.  You will still need the services of an experienced attorney who can review your case and guide you on how to go about it.


When Can My Child Decide Which Parent To Live With in Texas?

At What Age Can Children Decide Which Parent to Live With in Texas

Children are often left confused and anxious during divorce and custody battles.  In fact, there is a high likelihood that after a divorce is finalized, a child is going to express desire to live with a particular parent.  Despite how difficult the divorce may be for them, children cannot determine which parent they will live with after the divorce. It is up to the court to decide even in a situation where parents agree concerning child custody.

12 Years Old and Over

The law allows the judge to interview a child that is 12 years of age or older concerning custody.  During the interview, the judge will listen to the child’s wishes, desires and opinions regarding residency and primary conservatorship. However, the judge does not have to decide custody based on the child’s wishes or requests.  To determine where the child will live, the judge is expected to consider the following:

  • The entire circumstances involved in the custody case
  • The circumstances that have changed since the prior order was issued by the court
  • Whether the child’s desires are in the best interest of the child

It should be noted that the court is aware that a child that is 12 or 13 years old or even older can be manipulated by the parents. This is where parents may try to bribe or harass a child into expressing a particular view when the judge is interviewing the child. There are also instances where the child’s wishes or desires on who to live with, is based entirely on the parent who has the best gaming console or swimming pool in their home.

Interviewing the Child

The judge will interview a child that is at least 12 years old “in chambers” or in the judge’s private office, or other private setting chosen by the judge.  It is in the courts discretion to interview a child that is under 12 years of age. However, the law requires the judge to interview children that are 12 years old or older. Generally, the judge can only interview the child if the parents do not agree on who should be the primary conservator (the person who the child resides with).

The interview must not take place if the parents are in agreement about the primary conservator. During the interview, the court has discretion on whether to allow the parties’ lawyers to be present during the interview or not.  The divorcing spouses are allowed to request the court to make a record of the interview with the child. If the court agrees to this request, a court reporter will transcribe the interview in the chambers as the interview takes place.

Can children testify in court?

The court may appoint an attorney ad litem to gather information about the child’s life and best interests. This attorney will act as the child’s advocate but the child will not testify in a custody case.  So, as far as custody cases are concerned, expect a lot of complex situations that only an experienced attorney can help you navigate.


4 Types of Texas Divorces

Types of Divorce in Texas

There are a number of reasons why someone would want to end their marriage through filing for divorce.  Reasons for ending a marriage may range from infidelity to just feeling that you and your spouse are incompatible. However, divorce is a complex process in Texas especially if there is significant property or children involved in the process. Fortunately, there is more than one way to get a divorce.

Uncontested Divorce

Uncontested divorce happens when both parties work things out mutually to reach an amicable resolution.  That means they agree on how community property should be divided, financial issues involved, child support and other issues.  Though this type of divorce can be finalized quickly, there have been cases where spouses have given up rights that they didn’t even know they had.  Some have given up rights such as spousal maintenance, income from real estate, retirement benefits and more. However, you can hire an experienced attorney to ensure you do not give up any of your rights.

Mediated Divorce

Here a neutral attorney guides the two parties through a negotiated process so that they can arrive at an amicable resolution.  Mediation often takes a full day for an amicable agreement to be reached. However, the time it takes depends on the issues and how far apart the couple is on what they want and what they believe is fair. The process is normally held in the Mediator’s office or at one of the attorney’s offices.

types of divorce in texasThe needs and wishes of both sides are presented and efforts are made for a mutual compromise to be reached. Many courts in Texas often require couples to go through mediation before going to a final hearing. Parties only go to court f the mediation does not work.

Collaborative Law Divorce

Just like in the mediated model, a transparent negotiated process takes place to allow the parties to agree. However, in this process each party not only has an attorney but there are other neutral experts present. These neutral experts may include mental heal health professionals, financial experts, and experts trained in conflict resolution.

In each meeting there is a separate agenda that is discussed and both spouses keep minutes and take notes. The agreement reached in the process is recognized by Texas law. Things discussed during this collaborative law divorce process cannot be used as evidence against the other party in a court because they are confidential.

Litigated Divorce

Contested Divorce in Texas

The spouse seeking a litigated divorce will have to file an original petition, and the other party must be “served” with the lawsuit.  Filing must be done even if both parties agree to have a divorce. A litigated divorce means going through hearings, presenting evidence and a trial.  Both spouses will need an attorney to argue on their behalf in the court on matters involving property division, child custody and so on. The court may also issue temporary orders if requested by a spouse as the divorce process continues.  This type of divorce can cost a lot of money especially if takes a long time for the divorce to be finalized.


Texas Partition And Exchange Agreements

Partition Agreement – Texas

Marital Property Exchange Agreements in TexasSometimes spouses can agree to change the characteristic of community property or separate property or both.  These kinds of agreements are referred to as “marital property agreements”. The following are the three types of marital property agreements:

  • Partition or exchange agreements
  • Premarital agreements
  • Converting separate property to community property agreements

Community Property Agreements

Details about spouses partitioning or exchanging community property between themselves are in the Texas Family Code section 4.102.  The code states that “At any time, the spouses may partition or exchange between themselves all or part of their community property, then existing or to be acquired, as the spouses may desire.

Creating Separate Property

Property or a property interest transferred to a spouse by a partition or exchange agreement becomes the spouse’s separate property. The partition or exchange of property may also provide the future earnings and income arising from the transferred property shall be separate property of the owning spouse.”

Marital Property Agreements

Pre-Marital Agreements

These are agreements that couples sign before they get married to modify or eliminate community property rights.  They are meant to change the way Texas courts will treat the rights of the couples in the event of divorce or death of either spouse.   For example, an agreement may include a section that specifies that the couple cannot create a community property, or ask for spousal support in the event of a divorce.  However, the agreement cannot limit a spouse’s right to child support, and cannot be used to defraud third-party creditors.

Agreements Converting Separate Property to Community Property

A spouse may decide to convert separate property into community property.  Separate property includes:

  • The property owned or claimed by the spouse before marriage
  • The property acquired by the spouse during marriage by gift, devise, or descent; and
  • The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss or earning capacity during marriage

However, community property, other than separate property, obtained by either party during marriage. Agreement for converting separate property to community property can be done as a loving gesture or for purposes of inheritance or taxation. However, only currently existing property can be converted from separate property into community property. This is why you and your spouse are required to specifically identify the property that you are converting. This agreement actually makes the spouse converting their property lose management rights over the property, and subjects that property to the debts of the other spouse.  This kind of agreement is done by a couple that is already married.

Enforcing Marital Property Agreements

For these to be enforceable, the agreements must be in writing and each spouse must sign the agreement voluntarily. The agreement must also not be unconscionable when it is signed.   An unconscionable agreement is an unfair agreement. In other words, it is an agreement that was made without considering factors like having attorneys present when the agreement was being signed and so on.  These conditions and others exist to protect each spouse in the event that they decide to separate or divorce. Texas Family Code Section 4.006 has all the details about the enforce-ability of these agreements.

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Texas Temporary Injunctions

Temporary Injunction Definition

temporary injunction order definition in texasTemporary injunctions serve the purpose of protecting a party or a child and preservation of property during a divorce. When a temporary injunction is granted it is deemed that the party it was filed against is prohibited from the actions that have been detailed in the order.  For such orders to be given both parties must attend a hearing held before a judge. That means that the other party must be given a notice for that hearing. So the respondent receiving a notice and being allowed to attend the hearing before a judge is the main difference between a temporary injunction and a temporary restraining order (TRO).

Hearing on Temporary Injunction

A hearing on the temporary injunction should be held within 14 days in the event that a TRO is granted and signed by the court.  If a TRO has not been granted, the court can set up a hearing whenever it sees fit. The respondent should receive a notice within 3 days unless the court shortens the time frame or the other party waives it.

Evidence is required at the temporary injunction hearing even if the defendant does not appear at the hearing. You have the right to be heard but the trial court can still place some reasonable limits on your evidence presentation. However, if a defendant had violated a temporary restriction order, that fact will not determine whether the court enters the temporary injunction.

The defendant should appear at the hearing even if the defendant does not believe the court has jurisdiction over the case.  If the temporary injunction is granted in your absence, you can discuss with your attorney about modifying the order or dissolving it altogether.

Temporary Injunction Orders

A temporary injunction order must state the reasons why the injunction was issued by defining injury and describing what is irreparable. The facts that are enjoined in the order must be clear, specific and unambiguous. This is for the purpose of making it easy for the defendant to know exactly what duties are imposed on the defendant.  An injunction order may include:

  • Payments to be made to either spouse
  • Prohibiting parties from spending funds beyond a certain amount
  • Appointing a receiver to preserve property belonging to the parties
  • Require a party to produce books, documents, papers, and tangible things
  • Awarding one party exclusive control of a party’s business or occupation
  • Ordering payments of expenses and attorney fees

An experienced attorney can help review a TI and advise you on the appropriate actions to take.

Expiration of Temporary Injunction

Temporary restriction orders (TROs) expire after 14 days but can be extended by the court or by agreement of the parties. However, temporary injunctions expire last the time duration specified in the order, or on the date the divorce is finalized. The order may also expire when the parties decide to dissolve it.  Note that third parties such as business partners, banks and others can be bound by a temporary injunction. However, for it to be valid against third parties, it must comply with certain requirements.

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Is Texas An Alimony State?

Alimony In Texas

Texas is an alimony state but the courts tend to apply limiting criteria when determining alimony.  Alimony in Texas should not be confused with spousal support, which is support that is usually awarded during the divorce process.

spousal support and alimony rules in texasSpousal Support Texas

Alimony is actually referred to as spousal maintenance and it lasts long-term, sometimes even after the divorce is finalized.

The reason why people sometimes wonder whether Texas is an alimony state is because it was the last state to enact a spousal maintenance statute in 1995.

Getting “Alimony” in Texas

Temporary Spousal Support in Texas

You don’t just automatically qualify for spousal support or alimony in Texas.  There are restrictions in place which make alimony hard to obtain. The reason for this is that in Texas, the statute was adopted to provide spousal maintenance as a temporary support for a spouse that cannot support themselves.  It is also for a spouse whose assets are not enough to meet reasonable expenses or needs.

In addition, under subsection 3, alimony is meant for spouses who gave up their jobs or education opportunities to maintain and care for the children and the marital home.  These spouses’ skills must also not be current during the time of divorce, which means they may not be able to transition into the workforce after divorce.

Requirements to Qualify for Alimony

 Generally you qualify for spousal maintenance in the following circumstances:

  • Your spouse is convicted of committing family violence against you or your child, during the divorce process or two years before the divorce action was filed
  • You and your spouse were married for at least 10 years, you are seeking support because you cannot provide for basic needs
  • You as the spouse seeking support is mentally or physically disabled which makes you unable to earn enough to provide basic needs
  • You are seeking support because you have custody of a child who requires special care and supervision because of physical and mental disability.  This must also be making it difficult for you to earn enough income to provide basic needs

To calculate the 10 year duration for alimony is add up the number of years from the date of marriage to the date when the divorce was finalized.

Time Limit and Amount of Alimony

In Texas, alimony is mostly limited to a maximum of 3 years.  The payments are made every month and the total monthly payment cannot exceed $2,500. The payments will be made for a time period the court considers enough for the spouse receiving payment to develop appropriate skills, or find appropriate employment. Appropriate employment in this case is employment that allows that spouse to provide the basic needs, or enough time to develop appropriate skills. The issue that normally arises in these cases is defining the minimum reasonable needs of the spouse receiving support.

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Common-Law Marriage Alimony

If your marriage was established under a common-law process, alimony is available if you divorce.  Alimony can also be awarded if a marriage is found void because one spouse’s prior marriage was not dissolved.  In this case, the spouse that entered into the marriage without knowing that the other spouse had an existing marriage, may be awarded alimony even if the marriage is declared void.