In Re Forlenza
2004 Tex. LEXIS 656, 140 S.W.3d 373, 47 Tex. Sup. Ct. J. 879 (2004)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under Texas Family Code section 152.202(a)(1) (UCCJEA), a court that made an initial child-custody determination retains exclusive continuing jurisdiction over that determination until a court of that state determines both that neither the child, nor the child and one parent, nor the child and a person acting as a parent, have a significant connection with that state, and that substantial evidence concerning the child’s care, protection, training, and personal relationships is no longer available in that state. Therefore, jurisdiction continues as long as either a significant connection or substantial evidence remains.
Facts:
- Ann Marie and Robert Joseph Forlenza were divorced in Collin County, Texas, on March 1, 1996.
- On July 23, 1997, a Texas trial court signed an agreed modification order, granting Robert primary custody of their two children and the exclusive right to establish their primary physical residence.
- In July 1997, Robert moved with the children to Issaquah, Washington, and subsequently moved three more times: to Ohio (August 30, 1998), Virginia (February 19, 1999), and Colorado (August 27, 2002), where they resided at the time of the dispute.
- Ann, the non-custodial parent, continued to reside in Texas.
- In 2001, Robert lost his job in Virginia and was offered a two-year contract job in Taipei, Taiwan.
- The children visited Texas six times in the four-year period preceding Ann's modification suit, with four of these visits lasting approximately one month during the summer, during which they lived with Ann.
- Ann flew to Washington, Ohio, and Virginia at least fifteen times over a four-year period to see the children.
- Numerous relatives, including Ann’s mother and sister, and Robert’s sister and sister-in-law, live in Texas and maintain a relationship with the children.
Procedural Posture:
- Ann Marie and Robert Joseph Forlenza were divorced in Collin County, Texas (trial court/court of first instance).
- The Collin County trial court signed an agreed modification order regarding child custody on July 23, 1997.
- Ann filed a suit in the Collin County trial court on September 10, 2001, seeking to modify the prior possession order and requested a restraining order prohibiting Robert from relocating the children outside the United States, which the trial court granted.
- Robert filed a counter-motion and a motion to dismiss, alleging the trial court lacked jurisdiction or, alternatively, requested it to decline jurisdiction in favor of Virginia.
- After a hearing on November 29, 2001, the Collin County trial court denied Robert’s first motion to dismiss.
- During a pretrial conference, Robert filed a second motion to dismiss, alleging the trial court lacked exclusive continuing jurisdiction under Texas Family Code section 152.202(a).
- After another evidentiary hearing, the Collin County trial court denied Robert’s second motion to dismiss.
- Robert (appellant) filed a petition for writ of mandamus with the court of appeals, challenging the trial court's jurisdiction.
- The court of appeals granted Robert’s petition for writ of mandamus, concluding the trial court had abused its discretion, and ordered the trial court to vacate its prior order and dismiss the case for lack of jurisdiction.
- Ann (appellant) filed a petition with the Supreme Court of Texas, seeking review of the court of appeals' decision.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a Texas trial court retain exclusive continuing jurisdiction under Texas Family Code section 152.202(a)(1) (UCCJEA) to modify a prior child custody order when the children have resided out of state for over five years with the custodial parent, but the non-custodial parent remains in Texas and the children maintain some connection with Texas?
Opinions:
Majority - Justice O’Neill
Yes, the trial court retained exclusive continuing jurisdiction over the modification proceedings because the children maintained a significant connection with Texas, and under the statute, jurisdiction continues as long as either a significant connection or substantial evidence is present. The court explained that the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) was adopted to clarify and unify standards for continuing and modification jurisdiction in interstate child-custody matters, harmonizing the prior UCCJA with the Parental Kidnaping Prevention Act (PKPA). Texas Family Code section 152.202(a)(1) states that exclusive continuing jurisdiction lasts until a court determines both that a significant connection no longer exists and that substantial evidence is no longer available. This means jurisdiction persists as long as either element is still met. The court found that Ann's continued residence in Texas, combined with the children's six visits to Texas over four years (including four extended summer visits with Ann), Ann's numerous trips to see the children in other states, and the children's ongoing relationships with relatives residing in Texas, collectively demonstrated a significant connection with the state. The court rejected Robert's argument that a high level of physical presence in Texas or the most significant connection was required, noting that the children's frequent change of residence in other states actually supported the trial court's finding of a significant connection with Texas. The Court also clarified that once the trial court had made prior custody orders, the burden was on Robert to show jurisdiction was lost, not on Ann to re-establish it.
Analysis:
This case provides crucial guidance on the interpretation of the UCCJEA's exclusive continuing jurisdiction provisions, particularly Texas Family Code section 152.202(a)(1). By clarifying that jurisdiction ceases only when both a significant connection and substantial evidence are absent, the Texas Supreme Court significantly strengthens the ability of the original decree state to retain authority over child custody matters, even when children have resided out of state for extended periods. This interpretation prevents the original jurisdiction from being easily defeated by frequent interstate moves and promotes stability in custody determinations, discouraging forum shopping. It also emphasizes that a court with initial jurisdiction can maintain that authority even if another state might seem to have a more substantial connection, shifting the focus to whether any significant connection or substantial evidence remains in the initial state.
