If you have a child, then you need to file the divorce in the state where the child physically lived in the 6 months leading up to the date that the divorce is being filed.
This is called the child’s “home state.”
Importantly Section 6.305 of the family code says that if you can indeed get personal jurisdiction over your spouse who does not live in Texas, as well as jurisdiction over your spouse for custody determinations (SAPCR cases), BUT section 6.305 only confers personal jurisdiction over the non-resident spouse, and does not confer subject matter jurisdiction over this spouse.
The only source for subject matter jurisdiction over a non-resident spouse is found in Section 152.201. This part of the family code makes it absolutely clear that the only court that can make any custody determinations is the court where the child has physically lived leading up to the date that the case is filed.
Other cases from the last decade of interpreting these parts of the family code have shown that they are consistent in their rules on this. If you file the divorce somewhere that the child has not lived, the court may be able to grant the divorce, but cannot render any custody determinations.
As you can see in section 152.201, if the child has not lived anywhere for 6 months leading up to the date of the divorce, then you can file it in Texas, IF you can show that the child has significant ties to Texas or no other court has jurisdiction.
Also, section 152.201 does not state that the divorce has to be filed in the state of residence or domicile, rather it just says the child’s home state which case law has interpreted to mean “physical presence.”
Texas Family Code- Sec. 6.305. ACQUIRING JURISDICTION OVER NONRESIDENT RESPONDENT.
(a) If the petitioner in a suit for dissolution of a marriage is a resident or a domiciliary of this state at the time the suit for dissolution is filed, the court may exercise personal jurisdiction over the respondent or over the respondent’s personal representative although the respondent is not a resident of this state if:
(1) this state is the last marital residence of the petitioner and the respondent and the suit is filed before the second anniversary of the date on which marital residence ended; or
(2) there is any basis consistent with the constitutions of this state and the United States for the exercise of the personal jurisdiction.
(b) A court acquiring jurisdiction under this section also acquires jurisdiction over the respondent in a suit affecting the parent-child relationship.
Texas Family Code §152.201. Initial child custody jurisdiction
(a) Except as otherwise provided in Section 152.204, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) a court of another state does not have jurisdiction under Subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 152.207 or 152.208, and:
(A) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
(3) all courts having jurisdiction under Subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 152.207 or 152.208; or
(4) no court of any other state would have jurisdiction under the criteria specified in Subdivision (1), (2), or (3).
(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
Megan Victoria Cook
Texas Divorce Lawyer & Managing Partner of Cook & Cook
I would be honored to talk to you about your divorce needs in Texas. My telephone consultations are free. Call today +1 (888) 646-5808
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