Case Update (5 March 2025): In re Jenkins; parent should file in child’s home state, or demonstrate the home state declines jurisdiction to proceed elsewhere under UCCJEA

This case is before the Court of Appeals of Texas (4th District). The child at issue was born in Okinawa, Japan on November 29, 2021. The family resided in Japan due to the Father’s military deployment. On March 8, 2023, the Father filed a petition for divorce in Bexar County, Texas. The entire family - Mother, Father, and Child - were still residing in Japan at the time of this court filing. About one week later, the Mother counter-sued the Father in Texas, seeking divorce and custody. She did not contest jurisdiction at that time. In June 2023, the Mother and Child moved from Japan to Philadelphia. On September 23, 2024, the Texas court held a final hearing, and the parties entered a partial agreement as to the Child’s custody. On November 27, 2024, having retained new counsel, Mother filed a motion to sever and dismiss, asserting for the first time that the Texas trial court lacked subject matter jurisdiction over the the child’s custody (in Texas, called conservatorship). The Texas court held a hearing on this motion on December 18, 2024. At the hearing, the Father argued that the Status of Forces Agreement (SOFA) with Japan precludes him, as a military member in Japan solely for the purpose of fulfilling his military duties, from filing for an initial child custody determination in Japan. The trial court denied the Mother’s motion. Mother appeals.

The Court of Appeals analyzed whether Texas was the child’s home state on the date that the Father filed his custody suit (on March 8, 2023). The Court noted several past cases where the child’s home state was another country at the time that the Parent filed for custody in Texas, and the Texas court dismissed the case, deferring to the foreign jurisdiction. The Father attempts to distinguish those cases, however, based on the SOFA, which states, in relevant part: (1) the U.S. may bring U.S. armed forces and their dependents into Japan, and (2) those individuals in Japan under the SOFA are exempt from passport and visa laws in Japan and “shall be exempt from Japanese laws and regulations on the registration and control of aliens, but shall not be considered as acquiring any right to permanent residence or domicile in the territories of Japan”. The Court of Appeals noted that there was insufficient evidence to support that the SOFA should be read according to the Father’s interpretation. In other words, it is unclear from the plain reading of the SOFA that a Japanese court would decline jurisdiction over a child custody determination of a child born to a U.S. military member and his/her spouse. Therefore, the Court is unable to conclude that Texas was the child’s home state on March 8, 2023, and it must decline jurisdiction. By now, the Mother and Child are residing in Pennsylvania, and the Mother has claimed to have filed for custody there. That is a matter for the Pennsylvania courts to address.

The Court noted, in a footnote, that the Father relied on his military status in Bexar County where he resided prior to his deployment as the basis to file there. It also noted that at the time of the hearing, the Father was still residing in Japan.

Status of Forces Agreements are many and varied. You can find them on the U.S. Department of States website here. There is a separate SOFA with NATO. That can be found here. There may be supplements to these SOFAs, or separate bilateral agreements. These SOFAs provide the basis for the legal status of military, U.S. civilian employees, and there dependents who are stationed in other countries. The SOFAs typically affect status, entry and departure from the host nation, training within the host nation, law enforcement, taxation, export laws, driving privileges, employment (including for dependents), mail, schooling, housing and more. It is critical to consult the correct document if your client is residing overseas pursuant to a SOFA, and understand its impact, including whether it precludes your client from employment, etc.