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In re C.H.

Court of Appeals of Texas, Seventh District, Amarillo

December 31, 2019

IN THE INTEREST OF C.H., A CHILD

          On Appeal from the 16th District Court Denton County, Texas [1] Trial Court No. 16-09185-16, Honorable Sherry Shipman, Presiding

          Before PIRTLE and PARKER and DOSS, JJ.

          OPINION

          Judy C. Parker Justice

         Charles Richard Halstead, III, appeals the trial court's order dismissing his petition to adjudicate parentage. By his appeal, Halstead contends the trial court abused its discretion in declining to exercise jurisdiction and determining that Indiana is a more appropriate forum. We affirm.

         Background[2]

         The child the subject of this suit, C.H., was born in Texas on March 30, 2005. On November 7, 2016, Halstead, the alleged father of C.H., filed his petition to adjudicate parentage in Denton County, Texas. Approximately a week later, the child's mother, Tana M. Wagganer, sold her home in Denton County, and Wagganer and C.H. moved to Pierceton, Kosciusko County, Indiana. On November 28, 2016, the trial court entered temporary orders. Wagganer did not attend the hearing on temporary orders and defaulted. The temporary orders granted Wagganer the exclusive right to designate the primary residence of C.H. in Denton and contiguous counties, and gave Halstead a standard possession schedule and ordered that he pay child support. Thereafter, in August of 2017, the parties agreed to modified temporary orders giving Wagganer the right to designate C.H.'s residence in Indiana and modifying Halstead's visitation and child support.

         On January 25, 2018, the trial court issued a notice of non-jury dismissal setting for failure to dispose of the case within the time standards prescribed by local rule. Neither party appeared at the dismissal hearing and, on March 13, the trial court signed an order of dismissal for want of prosecution. The next day, Wagganer filed a petition to establish paternity in Indiana. On March 28, Halstead filed a motion to reinstate the Texas case alleging that his failure to appear for the dismissal hearing was not intentional or the result of conscious indifference. Wagganer filed a response to the motion to reinstate and a verified plea to the jurisdiction requesting dismissal of the Texas proceeding.

         On April 9, a hearing was held on the motion to reinstate.[3] Prior to ruling on the motion, the court allowed Halstead to file a response to Wagganer's plea to the jurisdiction. The Texas court signed an order granting reinstatement on April 27. A docket entry for May 22 indicates that the Texas judge "conferred with Indiana judge regarding pending action in Indiana; will confer after hearing held there." On June 1, the Indiana court held a hearing and signed an order denying and overruling Halstead's objection to jurisdiction in Indiana. On June 12, the Texas court found the State of Indiana is a more appropriate forum, declined to exercise jurisdiction, and dismissed Halstead's suit.

         On appeal, Halstead contends that the trial court abused its discretion by dismissing his suit because Texas has "home state" jurisdiction pursuant to Chapter 152 of the Texas Family Code. In two sub-issues, Halstead complains that the trial court failed to stay and abate the proceedings prior to deciding jurisdiction.

         Law

         Jurisdiction Under the Uniform Child Custody Jurisdiction Enforcement Act

         The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs jurisdiction over child custody issues between Texas and other states. Tex. Fam. Code. Ann. ch. 152. (West 2014);[4] In re Isquierdo, 426 S.W.3d 128, 131 (Tex. App.-Houston [1st Dist.] 2012, orig. proceeding). Section 152.201(a) is the "exclusive jurisdictional basis for making a child custody determination by a court of this state," and it provides that Texas has jurisdiction to make an initial child-custody determination if one of four circumstances are met. Waltenburg v. Waltenburg, 270 S.W.3d 308, 313 (Tex. App.- Dallas 2008, no pet.); see also § 152.102(8) (defining "initial determination" as "the first child custody determination concerning a particular child."). As relevant to this case, the UCCJEA provides that Texas has jurisdiction to make an initial child custody determination if it was the home state of the child on the date of the commencement of the proceeding. § 152.201(a)(1). The Family Code defines "home state" as "the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding." § 152.102(7).

         Inconvenient Forum

         A Texas court that has jurisdiction over a child custody proceeding may decline to exercise its jurisdiction if "it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." § 152.207(a); Lesem v. Mouradian, 445 S.W.3d 366, 372 (Tex. App.-Houston [1st Dist.] 2013, no pet.). In conducting this analysis, the court must consider whether it is appropriate for the court of another state to exercise jurisdiction. § 152.207(b); Lesem, 445 S.W.3d at 372. In making this determination, the court

shall allow the parties to submit information and shall consider all relevant factors, including: (1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside the state; (3) the distance between the court in this state and the court in the state that would assume jurisdiction; (4) the relative financial circumstances of the parties; (5) any agreement of the parties as to which state should assume jurisdiction; (6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (7) the ability of the court of each state to decide ...

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