Transcript

JoAl Cannon Sheridan: Any court, if it is for the safety and welfare of a child, can exercise temporary emergency jurisdiction and they can enter orders that are just as enforceable here as anywhere else, to protect the safety and welfare of that child.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome JoAl Cannon Sheridan as our guest on the Texas Family Law Insiders podcast. JoAl is the owner of Sheridan Family Law PLLC in Austin, Texas. She’s a well known and experienced trial lawyer in the area of family law. Board certified in family law since 2008 by the Texas Board of Legal Specialization, Joal is recognized both statewide and nationally as a frequent speaker to both lawyers and judges on complex family law topics, including third party and grandparent cases, conservatorship, interstate and international jurisdictional issues, complex marital property law and professionalism and ethics.

JoAl has served in numerous leadership positions in notable organizations and initiatives throughout the state and country. She’s the past president of the Texas Family Law Foundation, which promotes sound public policy and legislation during the Texas Legislative session, and she regularly testifies before State, Senate and House Committees on issues of family law. She’s also served in numerous leadership roles in the Texas Academy of Family Law Specialists and State Bar of Texas. In her spare time, JoAl is active in St. John’s United Methodist Church, where she sings in the choir and plays in the handbell group, as well as serves on the endowment committee. JoAl and her husband Dirk hold professional level divemasters certifications and enjoy tennis and cross fit training. Thank you so much for joining us.

JoAl: Thank you so much. Um, it’s just truly an honor and a privilege to have been asked to participate in this. This is really exciting and fun. So thank you for having me.

Holly: So why don’t you start by telling us a little bit about yourself.

JoAl: Well, I am a small town girl. I grew up in Mexia, Texas, that is spelled m e x i a so pronounced not anything like it is spelled. Was you know, like all of us type A people I was head cheerleader, homecoming queen, you know, whatever. Played flute in the band in Mexia. Went to the University of Texas for undergrad, Baylor law school. I have a penchant for rescuing people, which is probably part of why I’m in family law but I also rescued a lot of dogs and cats and other things. So I have currently down to four, but I’ve had as many as eight rescue animals. And one of my penchants is greyhounds.

Thankfully they are getting rid of greyhound races, but a lot of the former racers, they would either you know put to sleep or put out for adoption. So we’ve had a number of greyhounds, and I have two right now one of which only has one eye and is most accident prone dog in the world. But anyway, her name is Lark, and she’s very special, and she knows it. But that you know my first calling, I really really as much as I love practicing family law. My first love was I really wanted to be a veterinarian, but I really suck at math and science and so hence forth I’m a family lawyer.

Holly: Yes, many of us I have a feeling went to law school because we didn’t like math. So how would you describe your current practice?

JoAl: So my current practice is limited completely to family law. For the most part, I do more complex, high end property cases and definitely more high conflict custody cases. Although I do like to treat myself every once in a while and do the plain vanilla divorce that is not high conflict, and people actually are amenable to getting along. But I would say two of my areas that I’m asked to practice in or speak on a lot is international or interstate custody or jurisdictional issues and third party custodial issues for non parents. Which is sort of now after CJC kind of nonexistence for the most part, but that I’ve done a lot of grandparent and third party custody issues or access cases even though they’re like I said kind of non existent now. But that is something that I, that is for whatever reason it tugs at my heart so I’ve done quite a number of those.

Holly: So, one of the reasons that I reached out, well the reason that I connected with you to begin with was that I was really interested in getting someone onto our podcast who was kind of an expert in the UCCJEA. Because I found that it is one of the most often misunderstood areas of the law. And I’m consistently surprised at how many attorneys do not understand the UCCJEA, and do not know how, when they should be filing here, when they should be filing there, when you should get it dismissed, and things like that. So I reached out in Texas Family Lawyers saying, hey, who are the experts on the UCCJEA, that I can ask to be on my podcast, and immediately, I was told that you were the go to expert on this topic. So I’m very happy to have you here today so we can talk about that subject.

JoAl: Well, I don’t know that I’m an expert. I do find that in our family law bar that once you speak on something once, then you’re automatically an expert, whether you really are or not. But I do actually love the UCCJEA and yes, that makes me a really big nerd. But I I do like it. And I what I do agree with you is that so many lawyers don’t seem to understand it. But frankly, if you just took a little time, it is not nearly as complicated and as scary as I think most lawyers think it is. It’s pretty straightforward once you kind of get the basics.

Holly: So for anyone who doesn’t know, what is the UCCJEA?

JoAl: So the UCCJEA is the Uniform Child Custody Jurisdiction and Enforcement Act, which is you know, that’s why we call it the UCCJEA because it’s way too much to say. And basically, there are two international and interstate laws basically or for lack of a better term, concepts, the UCCJEA and UIFSA Uniform Interstate Family Support Act. UCCJEA deals only with custody and possession issues. So child related issues, custody, that sort of thing. And UIFSA deals only with support. And so they’re they have very different ideologies, they have very different needs as far as jurisdiction and whether or not you need subject matter or personal jurisdiction, all that kind of stuff. But UCCJEA, is only dealing with custodial issues, and when they intersect with either interstate or international lines.

Holly: So does the UCCJEA apply in international cases as well as just interstate cases?

JoAl: Oh, absolutely. And in fact, the UCCJEA specifically says that if you’re dealing with an international case, that a foreign country is basically defined as a state within the definition of the UCCJEA. So anytime you’re dealing with any sort of interstate or international custody issues, that you need to apply the UCCJEA it applies both internationally and intercontinentally.

Holly: So when, you know, as family lawyers, if we have a potential new client coming into our office, what do we need to look for to see if a potential case implicates the UCCJEA?

JoAl: Well, first of all, it would it would be whether or not we’ve got parents or children that are living in different states. I mean, if you’re within Texas, UCCJEA doesn’t even apply. But if you’ve got parents who and today’s you know, when I practice law in East Texas for ever before I moved to Austin in 2008, you know, on an interstate custody action really depended on whether you were going to, you know, have a divorce between Cherokee County or Anderson County. Those were about the distance that we had to deal with or Smith County. Now, though, you know, in our ever changing mobile society, especially now with COVID, and everything else, we’ve got an issue of, especially in Austin, I’ve seen so much of it, because we have so many of the California tech people coming here.

So I’ve got a ton of cases that involve Texas and California. And then but just internationally, I mean, Austin, there are these little microcosms of places in every state, I’m sure. But Texas for sure, Austin is an international community, whether we like to think of ourselves as that or not. And so I’m seeing it more and more and more where you’ve got people who have multiple residences, they have multiple homes. They are one place for six months out of the year somewhere else six months out of the year. So where really is their domicile or their residence? The kids are, are in school one place or another.

So, in that respect, I’m seeing it a lot in that we’ve got people with different domiciles, different residences, different places of living, or we have a parent who travels a lot or is in one place where jurisdiction for either the divorce or a custody action could be proper in more than one place. And then how do we go about determining who’s got the jurisdiction, especially with respect to the custody issues. But then again, we might have two different courts who have simultaneous jurisdictions, one over the support order, because that’s proper in one case, but it’s more proper to do the kiddo issues in the other state. So that’s what I’m seeing a lot in my practice.

Holly: So the UCCJEA would be implicated both in a new initial proceeding and in a modification.

JoAl: Correct.

Holly: So let’s start by talking about initial child custody proceedings. What gives Texas jurisdiction under the UCCJEA to make an initial child custody determination?

JoAl: So good question. So the UCCJEA is very specific. And there are four different scenarios where a Texas court or any any state court but would have jurisdiction over a child custody proceeding. And it is in order of priority. So if you meet one, you don’t get to go to you don’t need to pick, basically. It’s in order of priority. So first is home state jurisdiction. Home state is the predominant one where a child has lived in a state for at least six months with a parent or a person acting as a parent, in a state for at least six months preceding the filing of whatever petition. In the case of an infant is where that child has lived with a parent or person acting as a parent since birth, if they haven’t met the six month mark.

That’s really crucial. Because if there is a home state jurisdiction, you don’t get to go to any of the others.

So there’s home state jurisdiction, either that court must exercise subject matter, and that we’re all talking about subject matter jurisdiction. Subject matter jurisdiction over that case, or they have to decline in favor of another court for some other reason. But home state jurisdiction is predominant. If there is no home state jurisdiction, which in our ever mobile culture, sometimes I’ve had that come up quite a bit, then we go to whether or not the state has a significant connection to the child or the lawsuit, or the evidence or whatever.

And that’s one of the one I rely on most if I don’t have a home state, that’s the one I really kind of hit home with and and look for whether or not you know, where are the teachers? Where are the doctors? Where are the dentists? Where are the neighbors, who have anything to offer the witnesses? And it’s basically kind of the same as in Texas that we talked about forum, non conveniens, or convenient forum? Where where’s the evidence at, basically. If you don’t have either home state or significant connections, then you go to does any other state have the ability to exercise jurisdiction for any reason? And then basically, for your civil procedure 101 from when we’re all in law school, is there any basis under the Constitution that the court could exercise jurisdiction for one reason or another?

So that’s the way that it usually transpires. But I would say the majority of cases that I see are either home state jurisdiction, where you’re either asking the court to exercise home state jurisdiction in an original case, or there’s a new home state under a modification. Or, there is no home state, or even if there is there’s a reason under significant connections that we’re going to ask the home state continuing jurisdiction court to decline in favor of another court because it’s more convenient forum.

Holly: So if we’re looking at an original suit, we don’t have any court of continuing jurisdiction, but we may have a home state that is not Texas. But let’s say family is living in, you know, California for the last few years, everybody has moved out of California. Mom and child have been living in Texas for three months. Dad doesn’t live in California anymore. Can mom file in Texas even though it’s only been three months because nobody is still in California?

JoAl: Well, I guess the relative term is can she? Yeah, she can. But there might be a jurisdictional challenge. I think that Texas would probably end up maybe not even under significant connection but no other state having jurisdiction because California has lost jurisdiction, because it’s not the home state anymore. No one lives there, which is a big consideration under the UCCJEA. I don’t know that they necessarily have significant connections after only three months. But then you don’t want people to be in limbo, you know, they can’t get a divorce, or they can’t have a child custody order just because they haven’t been somewhere for six months.

So yes, they could file in Texas. But I would suspect that if, especially if the parties have any money or sophistication, there might be a jurisdictional challenge. So I would say that Texas would probably be the proper court of jurisdiction under that scenario, although dad might want to, for some other purpose, be able to try to say that, that California has jurisdiction. And I think California could exercise jurisdiction under the fact scenario that you presented just because of the length of time or the lack of length of time between the two places.

Holly: So one other way that a Texas Court could exercise jurisdiction under the UCCJEA would be in an emergency situation. Can you talk a little bit about what that emergency jurisdiction looks like?

JoAl: Yeah, so that and I actually have a case going on right now that, that we’re dealing with that. Yes. So any court, if it is for the safety and welfare of a child, can exercise temporary emergency jurisdiction, and they can enter orders that are just as enforceable here as anywhere else, to protect the safety and welfare of that child. The issue is, though, that and the UCCJEA specifically states that even if a court exercises temporary emergency jurisdiction, which of course we can understand, because we want to protect the safety and welfare of a child, that is not determinative of jurisdiction, ultimately. So even if Texas, someone comes to Texas, they get some emergency orders to protect a child. That doesn’t mean that Texas is going to exercise jurisdiction. You go back to basically, under the Texas family code 152.201, which is that laundry list of priority of jurisdiction.

You still have to go back to who would be either the home state, significant connections, whatever, to determine ultimate jurisdiction. But yeah, for for temporary emergency issue, you can exercise temporary emergency jurisdiction. A court can also, one of my favorites, and I just spoke on this the other day to the San Antonio Family Law Bar, one of my favorite other ways to exercise jurisdiction is, is bad conduct of a party. So for example, if and I had this case, about three years ago, four years ago, so mom and dad are Canadian citizens, but they, at some point moved to California, then they moved to Texas. Mom, then, you know, under the pretext of I’m going to go visit my family back in Canada, takes the child, goes there on a one way ticket and doesn’t come home. And after she’s there for six months, then files a divorce petition, and SAPCR under the UCCJEA in Canada.

Canada, and we had a Hague proceeding and all that other stuff that then Canada declined to exercise jurisdiction, because of the bad conduct of mom. Because basically, she kidnapped her own child. And, you know, you don’t get to get the benefit of establishing jurisdiction because you have basically kidnapped and hid out for six months. Yes, technically Canada is the home state of the child. But Canada declined to exercise jurisdiction in that case, because of the bad conduct of one of the parties. So that’s another way that a court like in Texas, can exercise jurisdiction, even though technically Texas was not the home state of the child. It only wasn’t the home state because of bad conduct of the mom.

Holly: So in that scenario, in order for Texas to exercise jurisdiction, it takes the other place, Canada in this scenario, to decline jurisdiction under that provision.

JoAl: Yeah, usually, I mean, I think the best practice, and every time I do it is to have the courts confer so that they are both in agreement. And it’s also helpful because I always ask the judges to make a docket entry in both places, so that anyone that’s coming after me or, you know, whatever happens afterwards, both judges have in their docket and in their court records, what they have decided and concluded about who has continuing exclusive jurisdiction.

Holly: So we touched already on jurisdiction to make an initial custody determination. But we also under the UCCJEA often have to look at who has jurisdiction to modify a child custody order. I’d say one of my biggest pet peeves in practicing family law is when I hear attorneys talking about transferring a case from one state to another. Can that be done?

JoAl: There is no such thing as a transfer interstate. No, there’s no such thing. You either decline jurisdiction or a court assumes jurisdiction. But there is no such thing as an interstate transfer.

Holly: No. So when we’re looking at modifying a custody order, that is from another state, what are the steps we need to take to figure out if we can modify it in Texas?

JoAl: Okay, so first, you go back to 152.201 and see in the order of jurisdiction, is Texas the new home state of the child? Or is there some basis under which Texas can exercise jurisdiction? There’s going to be another court of continuing jurisdiction, if it’s a modification and it’s an out of state order. The UCCJEA does not require registering an order that is only for enforcement. But I will tell you, in my own practice, in 30 years, that I always register the order when I modify. Because if you don’t, what is the court know that it’s modifying, frankly. And by registering it, you get a docket number, you get a case number, you know, it just it makes things easier. It’s not required under the UCCJEA, but I think it’s a best practice.

So and then in the modification you what I do, what I like to do, what the best practice is, in my opinion, is that you file you register the order here, not required, but I think it’s a good idea, file the modification. In the modification, I make a plea to the jurisdiction and ask the court to assume jurisdiction and to confer under the UCCJEA with a court of continuing jurisdiction. If there are sufficient funds to do so I usually will get a lawyer in the state of the court of continuing jurisdiction to file a simultaneous modification, acknowledging my modification action in Texas, and also asking that court to confer with my Texas court, instead of hearing at least limited for the purpose of those two courts conferring so that Texas and that other court, I think it’s a really good deal.

Because if you have already a an order in place, you want some sort of docket entry, some sort of notation in that court of continuing jurisdiction to say, I have declined jurisdiction, or I no longer have jurisdiction, something that says, yes, now Texas has jurisdiction, and then Texas then actually assumes jurisdiction. And I have an order that says, specifically, it’s a one paragraph order, I am, I Texas court and assuming jurisdiction over this lawsuit, and then we can move forward. So that’s, to me, that is the best practice if it’s practical and doable.

Holly: So when we’re looking at, you know, a court of continuing jurisdiction from another state, under what circumstances do you feel comfortable filing in Texas? And under what circumstances do you tell your client no this case belongs in the other state?

JoAl: Well, definitely, if there’s not home state, or some sort of significant connection. I just say, you know, you, you’re stuck there. Almost always, if it’s a support issue, as opposed to a custody issue, I say you’re stuck in that state, because the UIFSA is very, very specific about keeping jurisdiction on support issues. Most of the time, unless someone’s been here for an entire six months or there are some extenuating circumstances that show some significant connection to Texas. I usually will say, I’m sorry, you at least need to go have your initial battle in the originating state and let them decide that they don’t have jurisdiction or they don’t want it anymore, which is perfectly fine. A lot of judges will say, yeah, y’all don’t live here anymore. So I know you don’t really have a new home state, but I don’t want to deal with it. That’s fine. But I think that’s, that’s their call to make, not mine.

Holly: So I normally look at, you know, let’s say mom and child have moved to Texas, and dad remains in the state that issued the original order. And normal practice has been to tell mom, you know, as long as dad’s living in that other state, they’re going to keep it. If you want them to decline, you need to go get that court to decline. Do you have a different approach on something like that?

JoAl: I think it depends. It depends on how long they’ve been here, Holly. If they’ve been here, six months or more, then I go back to my where I do the simultaneous filing. I register the order here, even though it’s not required, I file a modification, I ask the court to assume jurisdiction, but I also file something, whether it’s pro hac vice, you know, or I get someone there, their former lawyer in the prior state, to file a motion, if anything, just a motion to decline jurisdiction and confer with the court.

So because I don’t think especially if they, if mom and child or parent and child has been here for six months or more, then that originating state is no longer going to have jurisdiction. But I think the best practice is to have that court have something on the record that acknowledges that. That says, we no longer have jurisdiction, we have lost jurisdiction, we’re declining, whatever they want to say, I don’t care. But that that there’s something on the docket, that that signifies that they no longer are the court of continuing jurisdiction.

Holly: So my understanding was that so long as one parent remains in that state, that state does have continuing jurisdiction. Continuing exclusive jurisdiction.

JoAl: Not under the UCCJEA. It is under UIFSA. Under UIFSA for the support issue, yes. Under UCCJEA, no. Because under UCCJEA, it is where the child is for that length of time. It doesn’t have anything to do with the parents. UIFSA is different, because it’s support and you’re asking for an affirmative obligation on a parent, where it is required to have personal jurisdiction over that person. You don’t have to have personal jurisdiction in UCCJEA you just have to have jurisdiction over the subject matter and the child. And so it really doesn’t matter if another parent is still there or not. It’s where the child is. And so yeah, but it doesn’t matter that a parent is still there. I still think you have to go through the the hoops of having that court decline jurisdiction or find that they no longer have jurisdiction. I think that’s the best practice. But under the UCCJEA it’s not required.

Holly: Interesting, because I have in the past successfully had cases stay in other states where we argued here, my client was in the other state, and we haven’t left, and the court should not decline jurisdiction and the court kept it.

JoAl: I’m not saying that that hasn’t happened before. I just disagree with the result, is all I’m saying. Based on my interpretation of the UCCJEA.

Holly: So when, so if I’m understanding you correctly, you’re saying that the court of continuing jurisdiction loses jurisdiction under the UCCJEA, if the child alone has been gone for more than six months?

JoAl: Yes. That’s what that’s that is what the definition of homestate is, barring temporary emergency jurisdiction or bad conduct of a parent.

Holly: And so you also mentioned something about not needing personal jurisdiction.

JoAl: Correct.

Holly: So if, let’s say mom’s still in California, dad and child moved here, California Court has allowed that to happen. Mom never agreed to it. But California Court says go, mom has no connection with Texas. She’s not served in the state. She doesn’t have any of those elements of personal jurisdiction that will allow Texas to assume it over her. So if dad serves mom in California, with a custody suit, Texas has, does not need personal jurisdiction over her to make a decision.

JoAl: Not to make a decision on possession and custody issues. They do need personal jurisdiction if they want to impose a an affirmative obligation on her. So for example, Texas doesn’t need personal jurisdiction over her to say dad has primary custody. Texas does not need personal jurisdiction over her to say mom gets XYZ visitation. Texas does need personal jurisdiction over her if they’re gonna say, mom, you have to pay for travel expenses. Mom, you have to do something affirmatively because the only way Texas can enforce that order is if they have personal jurisdiction over her.

But to have in rem jurisdiction, which is just the status of a thing. And subject matter jurisdiction, which they would under the UCCJEA, they don’t have to have personal jurisdiction over her just to say, this is what you got. You can have visitation, you can exercise it or not. We’re gonna not force you to do it. It’s only they want to force her to do something that they have to have personal jurisdiction, which is why UIFSA requires personal jurisdiction because it’s a child support order.

Holly: So even when we’re talking about custody issues, possession and access, it seems best practice that you want personal jurisdiction over the other side, otherwise you have a basically an unenforceable order.

JoAl: I wouldn’t say it’s, it’s unenforceable, but as long as it’s not requiring an affirmative action. But yeah, I mean, in a perfect world. Yeah. You want in rem personal and subject matter jurisdiction over everybody if possible. Yeah. That’s, that’s the best practices and, you know, pie in the sky. Yeah.

Holly: So we talked a little bit before about modifying an out of state order, and that you recommend registering it even when it is not required? When is it required to register it?

JoAl: Only if you want to enforce it. I mean, whether it’s possession and access, or under UIFSA, obviously, for child support, but yeah, the you only have to register it if it’s for enforcement purpose. And, and for enforcement purposes, you’re gonna want to need, and want personal jurisdiction over whoever you’re trying to enforce the order against.

Holly: So kind of speaking to UIFSA a little bit, if you are wanting to modify child support, do you need to register it first?

JoAl: Absolutely. Yes, you do. I would say so. I mean, again, it’s only required for enforcement. But, again, I don’t see how a court can enforce something that they don’t have a registered order and know what they’re enforcing. So.

Holly: So does registration of a foreign order automatically give Texas jurisdiction to modify it?

JoAl: Absolutely not. Registering is just for purposes of enforcement, you still have to meet the requirements of jurisdiction. So registering is strictly for purposes of enforcement. Nothing else just to give the court some sort of idea of what they’re enforcing, but it does not convey jurisdiction to them. Except for the extent of an enforcement issue that relates to the foreign order, but it doesn’t give them jurisdiction unilaterally over the entire, like a modification or otherwise. It’s just to enforce an order, which again, if you’re going to enforce you have to have personal jurisdiction. And so the only reason you would really register an order in a particular state, is because that’s where the person that you’re asking to have imposed an affirmative action is, so you need personal jurisdiction over them so that the court has authority to make them do what the court wants them to do.

Holly: Does the act of registering automatically give a court jurisdiction to enforce? Because my understanding of the requirements to register, I can register any order from anywhere without any requirement whatsoever. And that doesn’t seem like it should automatically confer jurisdiction. Because it doesn’t meet the other requirements.

JoAl: I think it depends on what you’re trying to enforce. I think it’s it is so factually based. I think the easy part is if you have an obligor that’s in Texas, let’s say any register that were a foreign order in Texas, and you’re trying to get them to pay child support. I think that does convey jurisdiction for that limited purpose on that because you’ve got personal jurisdiction over them, and they’re going to enforce and give credence to that interstate order. I think the other is relative, depending on I think it’s just a fact, I think is a case by case basis on what you’re trying to enforce.

Holly: So if you, a potential client comes into your office and they’ve been served with this modification in Texas, and you don’t believe Texas has jurisdiction to modify under the UCCJEA, what do you do to deal with that?

JoAl: Usually, I’ll just tell them, I’m sorry, thank you for your time. And thank you for your consult fee. But you really need to go back to the court of continuing exclusive jurisdiction. And I’ll find someone, I’m a member of the American Academy of Matrimonial Lawyers. And I’ll say, here’s a couple of names. And this is who you need to go talk to about what you want to modify, because that’s, that’s where you have to start.

Holly: And so that’s if the potential client is the one wanting to modify it. What happens when the potential client has been served by the other side trying to modify in Texas and you don’t believe there’s jurisdiction?

JoAl: Then I say, are you willing to go through the jurisdictional challenges, which are kind of, I love that stuff. I mean, that’s my favorite thing to do. But you know, we’re gonna, depending on whether or not whatever the action is, so you only file special appearance if you have to have personal jurisdiction over someone. So, you know, the trifecta of my happiness is we can challenge everything. You know, we need to challenge personal jurisdiction, we need to challenge subject matter jurisdiction, or a UCCJEA plea, the jurisdiction, decline the jurisdiction, all of that stuff. So depending on that, if they want to challenge that, that’s what I would say. You have to file that within the time for an answer, or otherwise you waive it.

So if they’ve been served with something, you know, you got the first Monday after expiration of the 20 days, whatever. Our special appearance, plea the jurisdiction, all of that has to be on file, and it has to be first, it’s in order, you know, in do order of pleadings. You have to file that first. You know, in the old days, when we actually physically went and had something file stamped, you know, with the time and date all that stuff. I just still because I’m old school, and I’m old, I still make sure that I file that first. And I ask that my staff doesn’t file whatever other responsive pleading I have until 10, 20, 30 minutes later, just in hopes that in the ethereal virtual world that it shows that. But basically, you have to do that first. So I, I will always suggest that we do special appearance or plea the jurisdiction, whatever. Now special appearance is completely waived, completely waived under the Constitution if you don’t file it first. Plea the jurisdiction, a little fuzzier.

You can do it simultaneously. Me, old school, I still do it way before I file any other responsive pleading. And in my pleadings, I will even say in the speeches I’ve given in the articles I’ve done, I put it in bold in my pleadings that this is subject to and after file, you know, like, yeah, everything just to make sure that it’s clear that I am not waiving any plea to the jurisdiction or my special appearance. But that’s that’s the way that I would handle it. If someone came to me, someone had filed a modification or enforcement, whatever. And I don’t think jurisdiction is proper, depending on what needs to be challenged, whether it’s personal jurisdiction or subject matter jurisdiction, I will file a challenge to the jurisdiction that supports that.

Holly: So definitely you can waive personal jurisdiction.

JoAl: Yes.

Holly: In general, you can’t waive subject matter jurisdiction.

JoAl: Correct.

Holly: Any order that is entered without subject matter jurisdiction would be void. So is the same true under the UCCJEA, if you don’t make that plea to the jurisdiction right out of the gate saying Texas doesn’t have jurisdiction under the UCCJEA, can that be waived? And can Texas then assume jurisdiction? Or are any subsequent orders void?

JoAl: So I don’t think you can waive subject matter jurisdiction. But I also think I agree with you that if someone challenged, I think it could be challenged later if if Texas did not have subject matter jurisdiction and exercised it, mistakenly or for whatever reason. Yeah, I think that that order can be void, or voidable. Yeah.

Holly: So what are the most common mistakes you see lawyers making regarding the UCCJEA?

JoAl: One that we’ve already talked about is thinking that they can register an order and that automatically conveys jurisdiction to that court. There’s that. Other big one that you touched on at the very beginning. is some sort of weird motion to transfer interstate, or what that’s like there’s no such thing. You cannot transfer across state lines. Those are the I think the biggest mistakes that I see. And and really just the idea. I mean, just even in the last two weeks, I had someone register an order, and think that that automatically conveyed jurisdiction.

And I’m like, you know, I’m sorry, no, that that’s no. Just, you can if there’s something you want to enforce, I’m not sure what you’re trying to enforce. And I’m really not sure why you even registered the order. But yeah, just registering the the thought that registering the order somehow automatically conveys jurisdiction to a court, that is probably the single most mistake I see. Followed closely by thinking you can transfer a case. There is no such thing as an interstate or international transfer.

Holly: So on the international piece of it. I know a lot of countries that we would deal with, if you do those sort of things, I suppose. Does the Hague Convention have some sort of provision that implements the UCCJEA? Or is it kind of every country for himself and the UCCJEA is just ours.

JoAl: The UCCJEA is pretty much ours, except for Massachusetts, which I find very interesting being one of the most progressive states in the union. And yet, they are the only state in the United States who has still not adopted the UCCJEA or UIFSA, it’s just mind boggling to me. Because even Alaska, and Hawaii, have adopted the UCCJEA. But so Massachusetts, still kind of follows it, but it’s not technically a signatory. You know, the, the idea that other states and other countries, it really, truly is a case by case basis. And I have had really good luck with foreign countries who are not signatories to the Hague, that actually sort of follow the spirit of the UCCJEA and the Hague.

And then I have had tremendous difficulty with actual signatories to the Hague, and that it seems to be like pulling teeth and taking forever when you would think with the child custody issue, that it ought to be some sort of priority. So I just really think it depends on the state in the nation. And if you’ve got some good contacts that can help you. And I know that’s not really an answer, and I’m sorry for that, but it’s the best I’ve got.

Holly: So we’re just about out of time. But one thing I always like to ask everyone who comes on the podcast is, if you could give one piece of advice to young family lawyers, what would it be?

JoAl: Don’t be scared to ask. I was the most fortunate person in the world. My father just passed away a month ago. And he and I were incredibly close. And he truly was our modern day, Atticus Finch. And the best piece of advice that I ever got from him is, it does not make you a failure, it is okay when you don’t know the answer. Just find someone who does. And it’s okay. Find a mentor, find someone that you can call and ask those questions that won’t have any judgment. They’re there to help you because we all pay it forward. So that would be my advice. Don’t be scared to ask. And be also willing to pay it forward, when it’s your turn.

Holly: I agree. 100% Where can our listeners go if they want to learn more about you?

JoAl: Oh, they can email me at [email protected] Or the Sheridan Family Law website. I’m always available. I have been the wonderful beneficiary of so many lovely people, and it’s my hope that I can help someone else so I am always happy if someone will call me and I’m happy to help.

Holly: Well, thank you so much for joining us today. For our listeners, if you’ve enjoyed this episode, leave us a review and subscribe to enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.