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This is about a child support modification that was

This is about a...

This is about a child support modification that was initiated by another party. The other party asked to transfer the case to a different county in Texas, I e-filed what I titled Custodial Parent's response to respondent's motion to transfer venue. His lawyer went to the judge and told him I had not filed a controverting affidavit so the judge now ordered to transfer the case. Is the problem the title? Should I have called it affidavit? or the judge didn't check that I filed something with the court? I guess I don't understand how the content of that paper doesn't matter

Lawyer's Assistant: Because family law varies from place to place, can you tell me what state this is in?

Texas

Lawyer's Assistant: Have you talked to a lawyer yet?

No

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I live in Florida

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Answered in 3 minutes by:
11/18/2017
RayAnswers
RayAnswers, Lawyer
Category: Family Law
Satisfied Customers: 49,623
Experience: 30 years as a family law lawyer .
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Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question and respond.

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Customer reply replied 10 months ago
thank you

Has the case already been transferred here, why did you not try to have it transferred to Florida here.I am not clear why you didn't argue for that if you and custodial kids live there.Have you tried to have Florida child support move it there?

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Customer reply replied 10 months ago
The child support unit in Florida is horrible, that's why I didn't want to transfer it, plus they consider number of overnights, and even though he only sees our child for maybe 2-3 weeks a year, the divorce decree gives him a lot of overnights. I am not sure if you got to review the file I uploaded, this is what I e-Filed, I thought that would be considered an affidavit, but his lawyer went to the judge and said I did not file a controverting affidavit and that's why he signed the order to transfer it to Dallas. What I don't understand is why they did not look at the paper I filed or if the problem is that I should have titled it affidavit instead of response. And can I appeal this decision? saying that I filed that I did not want a transfer. The order says that they are granting his request to transfer the case because I did not file a controverting affidavit. So, basically like I did not say I did not want the transfer. What do I do now?
Customer reply replied 10 months ago
I just uploaded the order so you can see it, apparently his lawyer had it signed yesterday, but sent it to me today.

Your response should have had a controverting affidavit attached here.Realistically you can and should file there in Flrodia even if you have to file pro se.Appealing this now will not get it moved back to Bexar County.

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You now need to file in Collin County to move it to Florida, here is how.

Step 1

Go to the clerk of the court in the jurisdiction that currently handles your child support case, and obtain a motion to transfer form. The typical court clerk maintains different types of forms for use by people without legal representation.

Step 2

Complete the form, following the instructions provided to you by the court clerk.

Step 3

Include specific information about why you desire to transfer the case to another state. For example, you would mention if the parent with the obligation to pay child support moved to another state. Enforcement is easier by transferring the case to that other jurisdiction.

Step 4

Insert the specific location where you want to transfer the case, including the name of the court in the other state.

Step 5

Sign the motion and send a copy to the other parent.

Step 6

File the motion with the clerk of the court.

Step 7

Obtain a hearing date for your motion from either the clerk of the court or from the administrative assistant to the judge assigned your case. Notify the other parent of the date and time of the hearing.

Step 8

Attend the hearing and present evidence supporting your desire to transfer the case to the other jurisdiction. If the other parent agrees to the transfer, you can report that fact to the judge at the hearing.

If you and the kids here live in Florida ,Florida has jurisdiction here.I am not sure the court could understand why you wouldn't move it there.Thats where it belongs legally.

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Customer reply replied 10 months ago
How would I file in Florida? What are the steps I should take? Because now I would think they will set a court date in Collin County, do I have to then eFile that I want the case transferred to Florida? or how do I initiate this now? in Florida everything moves very slow

File now.

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Customer reply replied 10 months ago
I guess what I don't understand how my motion here gets connected to what he's doing in Texas. What if I get a court date for Colin county before I get a court date for here?

So here your pleading was bad it lacked proper affidavit and really you need to get this transferred to Florida.You need to file that asap and get hearing set on that here defer his motion to modify and let Florida rule on that.

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Customer reply replied 10 months ago
what do you mean by defer his motion to modify?

Well he is trying to lower support I guess based on the decree.Is that correct, whatever he wants heard here it needs to be in Florida.I fear his lawyer has a judge picked out here in Collin County so you want it back to Florida.You can draft off of his motion and argue that under the UCCJA you and the children live in Florida for more than six months and it needs to be transferred.

http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.152.htm

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The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a uniform act that was adopted by all states (except for Massachusetts) in order to replace the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJEA corrects inconsistencies between the UCCJA and the Parental Kidnapping Act, as well as adding procedures for enforcing child custody determinations across state lines. The UCCJEA lays out guidelines for determining when a state court has jurisdiction (i.e. power) to make or alter custody determinations and continues on to describe how such determinations must be enforced by the courts. The jurisdictional portion of the UCCJEA determines if a state has jurisdiction over a custody proceeding in a number of situations, including initial custody determinations, modification of an earlier order, temporary emergency jurisdiction, and times when courts may decline to exercise jurisdiction. The UCCJEA has been codified into Texas law as Chapter 152 of the Texas Family Code.

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Jurisdiction means power. For a court to issue a valid final order in your case, the court must have jurisdiction over your case. In short, if you spend thousands of dollars to get a great victory, only to find out that the court did not have jurisdiction, you have wasted all of your money, because you have a void order – a worthless piece of paper.

The first and most important procedural aspect of a custody case is jurisdiction. The first step in understanding custody jurisdiction is understanding the UCCJEA – the Uniform Child Custody Jurisdiction and Enforcement Act.

As with any uniform act, the UCCJEA is a state statute that is designed to be uniform among all the 50 states. The UCCJEA is the successor of the UCCJA.

In Texas, the UCCJEA can be found in Chapter 152 of the Texas Family Code. See Texas Family Code § 152.101 (2011) (“This Chapter may be cited as the Uniform Child Custody Jurisdiction and Enforcement Act”). In fact, chapter 152 of the Texas Family Code is the Texas version of the UCCJEA. The UCCJEA details when a Texas court has subject matter jurisdiction to make a custody determination. It does not deal with child support issues. See, Texas Family Code § 152.102(3)(“’Child custody determination’…does not include an order relating to child support or another monetary obligation of an individual.”)

As stated, one of the most important aspects of the UCCJEA to understand is this: It deals with subject matter jurisdiction, not personal jurisdiction. Texas Family Code § 152.201(c) states, "Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination." That means that, for one thing, a Special Appearance is not the proper device to resisting a custody action, a motion to decline jurisdiction is. That being said, however, since a Special Appearance is waived if not filed properly, if the court also lacks personal jurisdiction, it is not a bad idea to file a Special Appearance, Motion to Dismiss for Want of Jurisdiction, and Motion to Decline Jurisdiction. See, e.g., Canales v. Riquelme, 2010 Tex. App. LEXIS 9175 (Tex. App. 2010)(“Thus, we do not have jurisdiction over the initial custody matters in this case, and we dismiss that portion of the case for lack of subject matter jurisdiction. We affirm the judgment with respect to the division of community property and the award of retroactive child support.”)

Initial Determination

To determine when a Texas court has subject matter jurisdiction to make an initial child custody determination, one must consult Texas Family Code § 152.201 and § 152.102, which provides the definitions of the terms used in § 152.201. The UCCJEA turns on the issue of home state jurisdiction. Pursuant to § 152.102(7), “’home state’ means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the child custody proceeding." The section goes on to detail how home state is calculated for a child under six months of age and talks about the issue of the temporary absence of the parent.

Texas Family Code § 152.201 not only provides the circumstances under which Texas can properly exercise jurisdiction in a custody case, but its listing of the scenarios is intended to provide the priority of these scenarios. See, In re Shurtz, 2011 Tex. App. LEXIS 10245 (Tex. App. Austin Dec. 30, 2011)(“However, Section 152.201 provides and prioritizes several bases for establishing subject-matter jurisdiction.”), citing Powell, v. Stover, 165 S.W.3d 322, 325 (Tex. 2005).

The highest priority is “home state” jurisdiction. Texas Family Code § 152.201(a)(1). The second highest priority is the circumstance in which a child has no home state, or the home state of the child has declined to exercise jurisdiction because Texas is a more appropriate forum. See Texas Family Code § 152.201(a)(2). The caveat to this second priority, however, is that the child and the child's parents or the child and at least one parent or a person acting as a parent must have a significant connection to Texas other than mere physical presence, and there must be substantial evidence available within Texas concerning the child's care, protection, training, and personal relationships. See Texas Family Code § 152.201(a)(2)(a) and (b).

Section 152.201 goes on to detail the third and fourth priorities that are available however those circumstances are generally much more unusual than those found in priorities one and two. See Texas Family Code § 152.201(3) and (4).

Subsection (b) of Texas Family Code § 152.201 makes clear that "subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state." See Bell v. McCarty, 2005 Tex. App. LEXIS 8723 (Tex. App. 2005)(“ Except for temporary emergency jurisdiction, however, a Texas court has jurisdiction to make an initial child custody determination only under the provisions of Texas Family Code section 152.201(a).”)

Texas Family Code § 152.202 provides that a Texas court maintains the "exclusive continuing jurisdiction" to modifying its custody orders, unless and until certain determinations are made either by a Texas court or the court of a sister state. Correspondingly, the UCCJEA of other states provides a similar framework for the power to modifying custody determinations made by those courts. See, e.g., Fla. Stat. § 61.501 et seq.; N.C. Gen. Stat. § 50A-101 et seq.; Cal. Fam. Code § 3400 et seq.; Haw. Rev. Stat. § 583A-101 et seq.

Modifications

There are two possible findings that could allow a litigant to seek modification of a Texas custody determination:

1. A determination by a Texas Court that neither the child nor the child and one parent nor the child and a person acting as a parent have a significant connection to Texas and that substantial evidence is no longer available in Texas concerning certain aspects of the custody case; or

2. A finding by the court of any state that neither the child nor the child's parents nor any person acting as a parent currently reside in the state of Texas.

Texas Family Code § 152.202(a)(1) and (2).

Given that individuals can have multiple residences, it is important to consider the statements made in the comments to § 152.202 for some of the unique fact patterns that can arise.

Paragraph number two of the comments following Family Code § 152.202, states that the phraseology used with respect to courts’ losing jurisdiction when a child and the child's parents, etc. "do not presently reside in this state" was the subject of considerable debate in the drafting of the UCCJEA. The comment goes on to state that, "It is the intention of this Act that subsection (a)(2) of this section means that the named persons no longer continue to actually live within the state. Thus, unless a modification proceeding has been commenced, when the child, the parents, and all persons acting as parents physically leave the state to live elsewhere, the exclusive, continuing jurisdiction ceases." See http://www.law.upenn.edu/bll/archives/ulc/uccjea/final1997act.pdf at 28.

Texas Family Code § 152.203 details the parameters within which a Texas court can modify a foreign custody determination (Foreign meaning an order from another State or another Country).

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Customer reply replied 10 months ago
I am sorry but what do you mean by saying "you can draft off of his motion"?

He did a motion to transfer, you need your own, I cannot find you a form here, you will have to follow his and add in the Texas Family Code Section claiming that jurisdiction here ir proper in Florida not Collin County and seek the court to agree defer ruling on anything else.This gets complicated, I understand you cannot afford a lawyer so you have to try and understand the law here and what you would want to try to get it out of Collin County and back to your home.

Thanks and thanks for rating 5 stars.Prayers to you here.

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Customer reply replied 10 months ago
one more thing, when you say I need a motion to transfer, you still say I need to initiate this in Florida, not in Texas, when this goes to Collin, correct?

You file the motion to transfer in Collin County if the case was moved there, then if your agrees they grant the motion case, moves to Florida aqnd is heard there, this will be contested I am sure the ex doesn't want it moved.But this is your next step.

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Thats why I was telling you for form purposes you can look at his motion , add some to it including new court here in Collin County and why it should be transferred to Florida.

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Customer reply replied 10 months ago
I understand now. Thank you. So, I will have to wait until they give me a court date to do this? The order to transfer to Collin county was signed yesterday.

Draft your motion you need to know what court in Collin County has this.Thanks again.File it as soon as you have case number.

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Customer reply replied 10 months ago
Thank you very much
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