Case Update (13 Oct 2022): In the Interest of AJT; subject matter jurisdiction over custody cannot be conferred by agreement, actions, or waiver

CustodyLitigation

Oct 25

Joshua, father of AJT, filed a petition for divorce and custody in a Texas family court in July 2020. The parents participated in certain hearings and the court entered temporary orders regarding custody of AJT. Cypreana, the child's mother, then sought to have the custody matter dismissed, and the temporary orders vacated, for lack of subject matter jurisdiction. The trial court concluded it had no subject matter jurisdiction, as Japan was the child's home state under the UCCJEA, as of the commencement of the proceeding in Texas. The Court of Appeals of Texas affirmed.

Joshua argued that the Texas Family Code does not invoke true subject matter jurisdiction or deprive the court of authority over child custody issues that are bestowed under the court's general jurisdiction. He also argued that UCCJEA jurisdiction can be conferred on the court by the actions of the parties (i.e., Cypreana's participation in the proceedings).

It is uncontroverted that at the time Joshua commenced the suit, the child had been residing with a parent (Cypreana) in Japan for six months, and is, as that term is defined in the UCCJEA, the child's home state.

"Subject matter jurisdiction is never presumed, cannot be waived, and can be raised at any time." The UCCJEA, as enacted in Texas, is the exclusive basis for jurisdiction to make an initial child custody determination. One cannot presume jurisdiction over custody - one must refer to the UCCJEA. In the UCCJEA, a foreign country "is treated as if it were a state of the United States." "There is no evidence in the record that Japan [the child's home state] declined to exercise jurisdiction." Further, while Cypreana's behaviors/actions may be relevant to personal jurisdiction, "subject-matter jurisdiction for child custody matters may not be 'invoked' by the actions of a parent. Nor can it be waived or consented to in place of the requirements outlined in [the UCCJEA]. Because subject-matter jurisdiction cannot be presumed or waived, and can be raised at any time, Cypreana did not confer subject-matter jurisdiction by any action before the trial court."

Melissa Kucinski

Melissa Kucinski works with family lawyers to strategically resolve their clients’ complex international cases. A fellow of the AAML, the IAFL, and chair of international family law committees in the American Bar and New York State Bar Associations, Melissa is a respected colleague to have on any legal team. A former consultant for the Hague Conference on Private International Law, member of the Uniform Law Commission’s Joint Editorial Board on Uniform Family Laws, and member of the U.S. Secretary of State’s Advisory Committee on Private International Law, Melissa maintains a robust network to help her clients in international disputes.

https://mkfamily.law/