Case Update (28 Dec 2021): Cortez v. Cortez; UCCJEA and loss of continuing, exclusive jurisdiction

Almost one year to the day, the Court of Appeals of Texas reversed and remanded its prior decision in the matter of Cortez v. Cortez. On December 29, 2020, the court had affirmed a trial judge, who had concluded Texas no longer had continuing, exclusive jurisdiction under the UCCJEA over the parties' two sons, dismissing Hector Cortez's modification suit.

The parties had agreed, in 2012, that Veronica would take the children temporarily (according to Hector) to Mexico during the pendency of their Texas divorce lawsuit. It was unchallenged that Texas was the children's home state as of the suit's filing, and Texas issued the initial child-custody determination under the UCCJEA. This initial child-custody determination required Veronica to return the children to Texas no later than August 1, 2014, which she never did. When Hector sought to enforce that provision, and sought to modify the arrangement, Veronica fought jurisdiction, arguing that the children had no remaining connections to Texas, therefore Texas lost continuing, exclusive jurisdiction. She convinced both the trial court and the Court of Appeals. Until now.

"Pursuant to this plain statutory text [of the UCCJEA], 'exclusive jurisdiction continues in the decree-granting state as long as a significant connection exists or substantial evidence is present.'” "The relevant time frame for determining whether the trial court retains exclusive continuing jurisdiction is the period preceding April 2015, when Hector filed his motion to modify the divorce decree." “A high level of physical presence in Texas is not necessary to satisfy the significant-connection standard.” "The child's actual presence in the state is not the only relevant consideration, however. One party's efforts to thwart the other party's rights to access to the child may be considered in the court's analysis..." "Consequently, in determining whether the children have a significant connection to Texas, we cannot ignore evidence of Veronica's continuous disregard of the divorce decree and her thwarting of Hector's rights to have the children visit him in Texas." "Beyond violating the divorce decree, Veronica interfered with Hector's access to the children in other ways. The trial court further found that Hector “attempted to exercise visitation at least seven (7) times which was not facilitated by” Veronica, particularly on “Summer Possession 2013, Spring Possession 2014, April 2014, Summer Possession 2015, End of Year 2016, Summer Possession 2017, [and] end of year visitation 2017.” Record evidence supports this finding."

The Court of Appeals reversed and remanded its own decision at Hector's request for a rehearing. A parent's behavior in blocking visitation and wrongfully retaining a child must be considered in the overall analysis of whether a child retains a significant connection to the issuing state. Hector's suit can proceed. What will remain unclear is whether Mexico will recognize any modified Texas custody order.