In re Tieri (Published): A two front custody battle. On the one hand, there’s New Jersey where the couple and the children lived for most of their lives. On the other, there’s Texas, where the mother, kids, and for a brief period, father lived as the marriage unraveled. The father files for divorce in New Jersey and he gets custody there. The mother files in Texas, and she gets custody here. So it comes down to which court has jurisdiction. It’s a Uniform Child Custody Jurisdiction and Enforcement Act case raising two questions:
First, under the six month consecutive residency requirement of Tex. Fam. Code Ann. § 152.102(7), does a temporary absence of the children from the State of Texas a.) not matter as long as it meets the “temporary” threshold; b.) “freeze” the six month clock until the children come back to Texas; or c.) require a restart of the clock at zero?
The answer is most likely “c,” although parts of the decision could be read to mean “b”.
Second: If a custody proceeding is voluntarily dismissed in one state, can another state assume jurisdiction over custody as though the first custody proceeding had never been filed?
No. Even though the case has been dismissed, the first state retains jurisdiction unless, along with the dismissal, it entered a specific finding that it has lost jurisdiction (for example, because neither parent lives in the state anymore).
- January: Mother brings the kids from New Jersey to Texas.
- February: Father files divorce in New Jersey.
- March: While the mother and children are still in Texas, the New Jersey court awards custody to the father.
- April: Mother and children return to New Jersey because they’ve been ordered to appear at a hearing. Other hearings are set, and they stay in New Jersey for somewhere between 22 to 26 days. Mother and father reconcile. Father dismisses New Jersey divorce. All go to live in Texas.
- August: Father leaves Texas. Mother files for divorce in Texas.
- September: Texas court denies father’s special appearance. Asserts jurisdiction.
- October: Texas court names mother sole temporary managing conservator, denies visitation to father pending further order.
- February: New Jersey court, on father’s petition, reinstates the New Jersey divorce. New Jersey court reopens case on grounds that the mother had fraudulently induced the father to dismiss it. In other words, she never had any real intention of reconciling. New Jersey court acknowledges that the Texas court has asserted jurisdiction, and refuses to rule on custody unless the Texas court relinquishes jurisdiction. As for itself, the New Jersey court does not enter an order relinquishing jurisdiction or finding that the circumstances have (or had at any point in this process) deprived it of jurisdiction.
- April: Father files a motion in Texas to dismiss under UCCJEA.
- August: New Jersey court grants the divorce without deciding custody. Texas court holds a telephonic hearing including both courts and counsel from both states.
- September: Texas court denies the father’s UCCJEA motion, holding that, at the time of the Texas divorce, the children had lived with the mother for six months, and in Texas for eight months (considering the their April ’06 presence in New Jersey as temporary).
- December: The father files a petition for writ of mandamus in Tyler.
The record is silent about what happened between September and December. The opinion doesn’t discuss issues of waiver and delay, so I’m guessing that there were motions for rehearing before the trial court. In any event, the Tyler court reviews the questions of law de novo. Since the children went back to New Jersey for a period, and since the New Jersey court didn’t enter an order waiving jurisdiction as part of the voluntary dismissal, New Jersey, not Texas, retains exclusive jurisdiction.