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UCCJEA CASELAW FROM HOUSTON COURTS OF APPEALS

Texas has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“Uniform Act") which
governs subject-matter jurisdiction of courts that deal with child custody disputes.  See Tex. Fam.
Code Ann.§§152.001-.371 (Vernon 2002 & Supp. 2008). Generally, under the Uniform Act, the court
that makes the initial child custody determination will retain exclusive continuing jurisdiction over
ongoing custody disputes.  Saavedra v. Schmidt, 96 S.W.3d 533, 541-42 (Tex. App.-Austin 2002, no
pet.).  Texas state courts lack subject-matter jurisdiction to modify the child custody determinations of
a court in another state unless the requirements of section 152.203 of the Family Code are satisfied.  
See Tex. Fam. Code Ann. § 152.203.

Under section 152.203, a Texas court must have jurisdiction under section 152.201 (a)(1) or (a)(2) of
the Family Code.  Tex. Fam. Code Ann ' 152.203.[1]  In addition, one of the following provisions must
be satisfied: (1) the court of the other state must determine it no longer has exclusive continuing
jurisdiction or that a Texas court would be a more convenient forum; or (2) a Texas court or a court of
the other state must determine that the child, the child's parents, and any person acting as a parent
do not presently reside in the other state.  Tex. Fam. Code Ann. § 152.203; In re S.L.P., 123 S.W.3d
685, 688 (Tex. App.- Fort Worth 2003, no pet.).

In the Interest of D.A.P. (Tex.App.- Houston [1st Dist.] Aug. 26, 2008)(Seymore)
(
child support, OAG suit UCCJEA, modification, order on SAPCR counterclaim reversed, no
jurisdiction over out-of-state parent due to failure to serve with citation UCCJEA)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore  
Before Justices Fowler, Frost and Seymore
14-06-00975-CV        In the Interest of D.A.P
Appeal from 246th District Court of Harris County
Trial Court
Judge: Jim York

Therefore, there are potential fact patterns under which the trial court could have jurisdiction under
the Uniform Act. Although Bishop alleges in her brief that she currently lives in Washington with D.A.
P., arguments in briefs are not evidence.  Castano v. San Felipe Agric., Mfg., & Irr. Co., 147 S.W.3d
444, 452-53 (Tex. App.- San Antonio 2004, no pet.).  Neither Piccardo's pleadings nor Bishop's
evidence affirmatively negate jurisdiction of the Texas court under section 152.203 to modify the
Washington court's custody order. As explained below, Bishop was not served with process and did
not appear in the trial court prior to judgment; therefore, she was not able to object to the failure to
make a record of the proceedings in the trial court.  Nonetheless, in the absence of a record of the
trial proceedings, this court still presumes that evidence was presented to the trial court supporting
the existence of facts under which the trial court would have subject-matter jurisdiction.  See Tex.
Fam. Code Ann.§ 152.203; Simon, 739 S.W.2d at 795.  Accordingly, we overrule Bishop's first issue.

No service on out-of-state parent

In sum, the record in this case shows that Bishop had not been served with process, had not waived
service of process, and did not voluntarily appear before the trial court conducted the trial and
rendered its final order regarding custody.  Therefore, the trial court   erred in modifying the
Washington child custody order.  Consequently, the trial court abused its discretion by denying
Bishop's motion for new trial in this regard.  Because we reverse the trial court's order as to
Piccardo's claims against Bishop, this appeal does not prejudice Bishop's ability, on remand, to argue,
as she does in this appeal, that the trial court does not have jurisdiction over the child custody issues
under the Uniform Act.

Accordingly, we sustain Bishop's second issue, reverse the portion of the order pertaining to issues of
child custody, and remand for further proceedings consistent with this opinion.[2]  Because no party
has appealed the portion of the order pertaining to issues of child support, we affirm the portion of the
trial court's order imposing a duty of child support on Piccardo.[3]



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