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In re S. J.

Court of Appeals of Texas, Fourteenth District

February 23, 2017

IN RE S. J., Relator

         308th District Court Harris County, Texas Trial Court Cause No. 2017-01082

         ORIGINAL PROCEEDING WRIT OF MANDAMUS

          Panel consists of Justices Christopher, Jamison, and Donovan.

          OPINION

          John Donovan Justice

         The subject of this mandamus proceeding is an Emergency Jurisdiction Order pertaining to S. S., the six year-old child of relator S. J. (Mother) and real party-in-interest S. B. (Father). On January 17, 2017, the Honorable James T. Lombardino, presiding judge of the 308th District Court of Harris County, after an evidentiary hearing, signed an Emergency Jurisdiction Order that, among other things, orders Mother to return the child to Chennai, India by January 23, 2017 and enjoins the parties from removing the child from Chennai, India subject to further orders of the Principal Family Court of Chennai, India. The Emergency Jurisdiction Order states that the court has jurisdiction under section 152.204 of the Texas Family Code because the child is present in Texas and it is necessary in an emergency to protect the child because the child is subjected to or threatened with mistreatment or abuse. See Tex. Fam. Code §152.204(a). On January 20, 2017, Mother filed a petition for writ of mandamus asking this court to compel the trial court to vacate its Emergency Jurisdiction Order, arguing that no evidence supports the trial court's jurisdictional finding. See Tex. Gov't Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. Pursuant to Mother's motion, our court stayed the Emergency Jurisdiction Order until a final decision by this court on Mother's petition.

         Because Father offered no evidence of an emergency in which it was necessary to protect the child because the Mother had subjected the child to or threatened the child with mistreatment or abuse, we conclude that the trial court had no jurisdiction under section 152.204 and that the Emergency Jurisdiction Order is therefore void. That Mother moved with the child from India to Texas without Father's knowledge or consent is not sufficient, by itself, to warrant the exercise of emergency jurisdiction under section 152.204(a).

         We therefore conditionally grant the petition for writ of mandamus and direct the trial court to vacate its Emergency Jurisdiction Order.

         I. Factual and Procedural Background

         Father is a citizen of India, but Mother and the child are U.S. citizens. Father and Mother married in January 2009 in Chennai, India, but lived in California for the first year and a half of the marriage. The child was born in California on June 2, 2010. Since 2014, the child has resided in Chennai, India, with Mother and Father. Mother was the primary caretaker of the child. She attended every doctor's visit, took the child to school, helped the child with his homework, and arranged the child's social activities.

         Mother testified that throughout the marriage Father abused alcohol and was physically violent towards her. Mother testified that on October 23, 2016, Father, in the presence of the child, grew angry with Mother, struck her repeatedly, causing her various physical injuries. Mother testified that because she feared for her and the child's safety, she decided to move permanently to Montgomery County, Texas.

         While visiting her sister in Amsterdam, Netherlands, Mother electronically signed a lease on an apartment in Montgomery County, Texas. Without Father's knowledge or consent, Mother and the child traveled to Texas on December 31, 2016. They stayed with friends in Spring, Texas, for a week while Mother's apartment was prepared. On January 7, 2017, Mother and the child moved into the new apartment. Mother testified that that her employment allowed her to work from home anywhere and that she could afford to live on her own with the child.

         Father, during this time, contacted law enforcement in Chennai, India, to report that his son was missing and to try to track him down through the Cyber Crime department. Father claims that on January 9, 2017, he filed pleadings to initiate divorce and custody proceeding in Chennai. Mother, however, claims that this Indian proceeding is not for custody or divorce, but is for the restitution of conjugal rights. Father testified before the Principal Judge of the Family Courts in Chennai concerning Mother's taking of the child. According to Father, the Chennai judge set a date for a full hearing concerning the custody of the child for February 7, 2017, and ordered the child to be produced in court at that time. Father claims that Mother has seen this Indian custody pleading, but Mother claims that she has not been properly served with the Indian citation and pleading.

         On January 6, 2017, Father filed his Original Petition and Suit Affecting the Parent-Child Relationship Seeking the Prevention of International Parental Child Abduction in the Harris County district court below. Also, on January 6, 2017, Father discovered that Mother was in Harris County and had her served with the petition at her friend's house. In the petition, Father requested, among other things, that the trial court (1) assume temporary emergency jurisdiction under section 152.204 of the Texas Family Code, (2) appoint Father the sole managing conservator of the child, and (3) enter orders to prevent the international parental abduction of the child under section 153.501-503 of the Texas Family Code. The petition states that the child's home state is India and that the trial court could assume emergency jurisdiction under section 152.204 because the child had been "wrongfully removed" from his home in India and to prevent "further abduction."

         After a three-day evidentiary hearing, the trial court signed an Emergency Jurisdiction Order that, among other things, requires Mother to return the child to Chennai, India by January 23, 2017, and enjoins the parties from removing the child from Chennai, India subject to further orders of the Principal Family Court of Chennai, India. The Emergency Jurisdiction Order states that the court finds it has jurisdiction of this case under section 152.204 of the Texas Family Code in that the child is present in Texas and it is necessary in an emergency to protect the child because the child is subjected to or threatened with mistreatment or abuse. See Tex. Fam. Code ยง152.204(a). The ...


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