Questions Answered by Daniel Abasolo - Justia Legal Answers

• 7 May 2012Q: I moved from tx to nc when my son was 3 wks old. Never married to father. Been in NC for 11 months and had temp orders
  A: The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) governs where child custody cases are heard and what courts have jurisdiction in all 50 states. When a court issues orders concerning conservatorship, visitation, or support of a child it becomes the court of continuing exclusive jurisdiction under the UCCJEA. In your case, the TX court apparently issued temporary orders concerning the child. Under the UCCJEA temporary orders alone are enough for continuing exclusive jurisdiction, meaning the TX court that issued the temporary orders must be the court where any future suit is filed. If the child no longer resides in TX then a pending suit or a future suit may be transferred to a more appropriate jurisdiction, but it still must originate in the TX court with continuing exclusive jurisdiction. If the child has lived in NC for at least 6 months then transfer to the County in NC where the child has resided is mandatory. All you need to do is hire a TX attorney in the appropriate county, do an affidavit stating where the child has lived, and have the suit transferred to NC. There will be extra court costs involved in the transfer, but as long as you haven't violated any geographic restrictions on where the child can live, you should be eligible for a mandatory transfer. Still, if you and the other parent agree on everything, and if the suit has not been dismissed for want of prosecution, then it might not be worth transferring. You might save some court costs and attorney fees by merely finishing the agreed orders in the court where the suit is already pending. Good luck.
• 7 May 2012Q: Is there anything that would allow a grandparent to file for a motion to access their grandchilder in Texas law?Housto
  A: The Supreme Court and Texas law recognizes the overwhelming interest parents have in raising their children. The court will not usurp parental authority and judgment without a good reason. Still, grandparents have some limited ability to seek conservatorship or access: Conservatorship is a bundle of rights that allows a person to act sort of like a legal parent to a child. Grandparents can seek managing conservatorship under specific circumstances. TFC (Texas Family Code)§ 102.004 says that a grandparent can only seek conservatorship if the, (1) the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development; or (2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit. These standards require a high degree of danger to the child. Parent's enjoy a presumption that they are best suited to raise the children and merely proving a grandparent would be a better conservator is not enough. Further, the grandparent cannot even file an original petition seeking conservatorship, they can only intervene in a pending suit by showing the above facts. Getting some access is probably closer to what you had in mind. Access is a set time when you can visit the child, but you won't have many rights to the child beyond mere possession. Grandparents can file an original suit for access to a child; still, parents have rights that the Supreme Court respects. See Troxel v. Granville (530 U.S. 57). At the time of filing, the grandparent must swear, and ultimately prove, that denial of possession of or access to the child by the petitioner would significantly impair the child’s physical health or emotional well-being. TFC 153.432. Also, the court can only award access if at least one biological parent still has parental rights, AND, (3)the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child: (A) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition; (B) has been found by a court to be incompetent; (C) is dead; or (D) does not have actual or court-ordered possession of or access to the child. TFC 153.433 Basically, you cannot get access unless you can show that your son is dead, incompetent, in jail, or has essentially abandoned the child. Before 2005 there was more that could be done under Texas law, but that Supreme Court case I cited above really strengthened parent's rights at the expense of grandparents rights. The case should be freely available on google if you're interested in the justification behind all this. Good luck and I hope you get to see your grandchildren.