Case Update (2021): Tucker v. Covarrubias Campos; registration of ex parte foreign child custody order under UCCJEA

On August 13, 2021, the Court of Appeals of Texas affirmed its trial court's registration of an ex parte Mexican custody order. The father, Mr. Tucker, appeals the registration, arguing that, at the time the Mexican court issued its order, giving Ms. Covarrubias Campos interim custody, he had no notice.

First, Mr. Tucker argued that he had no due process and was never provided a fundamental right to be heard or contest the allegations in the Mexican proceeding. A court order should not be recognized as a matter of comity in a U.S. proceeding if due process is not met. Due process requires notice and an opportunity to be heard "at a meaningful time and in a meaningful manner." Determining "what process is due is measured by a flexible standard that depends on the practical requirements of the circumstances." Mr. Tucker does not debate that the Mexican courts had jurisdiction in substantial conformity with the UCCJEA to issue the order (it was the child's home state), that it was issued as an "emergency order," or that he had actual notice within a few days after it was issued and was aware that he could contest it in the Mexican proceeding. The order itself was provisional pending trial, and its substance was subject to challenge or modification in the interim. Further, Mr. Tucker himself had requested a temporary ex parte restraining order from the Texas courts proximate to the Mexican proceedings. Texas courts permit these orders without violating due process.

Second, Mr. Tucker argued that he received no notice or opportunity to be heard as required by the UCCJEA. He cites to the section of the UCCJEA that says, "the Act 'does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.'" This section, however, relates to the enforceability of a child-custody determination, and not its registration.

Third, Mr. Tucker argued that he was never provided notice as required by a separate provision of the UCCJEA. However, the plain language of this portion of the UCCJEA does not require notice unless Mr. Tucker met his burden to establish that he was "entitled to notice" in the Mexican court proceeding itself. The trial court found that Mr. Tucker was not entitled to notice in the Mexican proceeding prior to the Mexican Order being issued, and Mr. Tucker did not cite any evidence that would meet his burden to establish that he was entitled to notice under Mexican law.