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Texas Court Must Transfer Custody Enforcement Action After Child Moves

In a Texas divorce case, the trial court that enters the divorce decree generally maintains continuing and exclusive jurisdiction over the children.  In some situations, however, transfer may be appropriate or even required.  If a party moves to enforce an order, but the child has resided in another county for at least six months, the trial court must transfer the case.  Tex. Fam. Code § 155.201.  To contest a transfer, a party must timely file “a controverting affidavit.”  The controverting affidavit must deny the “grounds for transfer exist . . .”  If the opposing party files a timely qualifying controverting affidavit, then there is a hearing.  If no qualifying controverting affidavit is timely filed, the case must be transferred without a hearing.  The transfer is mandatory if the elements are met, even when an enforcement action is pending.  A mother recently challenged an enforcement order that was followed by a transfer order just two hours later.

The mother was granted the exclusive right to designate the child’s primary residence and to designate it in McLennan County.  According to the appeals court’s opinion, she had moved to McLennan County by the time the divorce decree was entered in April 2018.

The father petitioned for enforcement of possession or access in June 2019 in Harris County, where the divorce decree had been issued.  The mother moved to transfer venue based on a statute requiring a case to be transferred to the county where the child has lived for at least six months.  Tex. Fam. Code § 155.201. The mother submitted an affidavit averring that she and the child had been living in McLennan County for more than six months.

At the hearing , the mother asked the court to transfer venue without ruling on the father’s petition.  The father was not ready for a transfer of venue hearing, but the mother argued transfer was mandatory without a hearing.

The trial court moved forward on the enforcement issue without addressing venue, over the mother’s objection.  The father testified that he had gone to McLennan County repeatedly to visit the child at her school and to discuss visitation.

The trial court signed two orders the following month.  First, the court signed an order of enforcement by contempt and suspension of commitment against the mother.  The court found she violated the divorce decree’s access provisions four times and sentenced her to 30 days in county jail for each offense, but suspended the commitment and ordered that the mother be placed on community supervision for 12 months if she met certain conditions.  Those conditions included paying the father $3,000, not violating the father’s possession rights, and allowing the father 10 additional days’ access that summer.

About two hours later, the court entered an order transferring the case. The court found the child had resided in McLennan County for at least 6 months before the enforcement action was filed.  The trial court found transfer was mandatory without further hearing pursuant to Tex. Fam. Code § 155.204.  The court granted the mother’s venue motions and ordered the transfer.

The mother appealed the enforcement order.

The parties agreed that the father had to file his controverting affidavit by July 22.  The father argued, however, that he had filed a controverted affidavit.  The appeals court found that the affidavit filed by the father did not deny the venue facts. He only stated that the mother had not provided evidence of the child’s primary residence for the last six months. His affidavit did not constitute a contravening affidavit, so the trial court was required to transfer the case without a hearing.  Furthermore, the father’s testimony supported the mother’s statement the child lived in McLennan County.

The appeals court found the transfer was mandatory.  By ruling on the enforcement action before transferring the case, the court abused its discretion.  The appeals court reversed and vacated the enforcement order, voiding all findings, rulings, and mandates contained in it.

The enforcement order in this case was vacated because the trial court had not followed proper procedure.  The attorneys at McClure Law Group have a thorough understanding of Texas family law procedure.  If you are dealing with a custody issue, one of our experienced Texas custody attorneys can help you.  Call us at 214.692.8200 to discuss your case.

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