in Re Carrie Dean

IN THE SUPREME COURT OF TEXAS
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NO. 11-0891
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IN RE CARRIE DEAN, RELATOR
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ON PETITION FOR WRIT OF MANDAM US
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CHIEF JUSTICE JEFFERSON delivered the opinion of the Court.
JUSTICE LEHRM ANN delivered a concurring opinion.
JUSTICE GREEN did not participate in the decision.
Motivated in part to prioritize “home state jurisdiction” in child custody proceedings, Texas
adopted the Uniform Child Custody Jurisdiction and Enforcement Act. See Powell v. Stover, 165
S.W.3d 322 (Tex. 2005). Forty-eight other states, the District of Columbia, Guam, and the United
States Virgin Islands have done the same.1
The Act encourages national uniformity in child custody disputes and addresses the
increasing mobility of American families. See Powell, 165 S.W.3d at 326. Previously, state courts
modified custody determinations each time a child moved from one state to another, and those orders
1
M as s achus etts and Puerto Rico recently introduced the UCCJEA to their legis latures for propos ed adoption.
C h i l d C u sto d y J u r i s d i c t i o n a n d E n fo r c e m e n t A c t , U N I F O R M LA W C O M M I S S I O N ,
http://www.uniformlaws .org/A ct.as px?title=Child%20Cus tody%20Juris diction%20and%20Enforcement%20A c t (all
Internet material as vis ited Dec. 19, 2012, and copy available in Clerk of Court’s cas e file). See al so 39 GUAM CODE
§ 39101 et s eq.
often conflicted. To minimize these conflicts, the Act provides guidance on how to determine which
state has jurisdiction over all subsequent child custody proceedings.2 The Act makes the child’s
“home state” the primary factor in this equation. See UNIF. C H ILD C U STODY JUR. & ENF. ACT
Prefatory Note, 9 U.L.A. 650–51 (1997) (stating that the Act sought to “eliminate the inconsistent
state interpretations” and “prioritize[] home state jurisdiction in [s]ection 201” when child custody
determinations are involved). It “establish[es] clear bases” for a court to “tak[e] jurisdiction and .
. . discourage[s] competing child custody orders” among different states.3
We consider today whether a Texas court has jurisdiction over a custody determination
involving a child who was born in New Mexico and has lived there all his life. Because New
Mexico, not Texas, is the child’s home state, and because we find no other “exclusive, continuing
jurisdiction[al]” bases under the Act, see TEX. FAM . CODE § 152.202, the Texas court improperly
assumed jurisdiction. We also think the New Mexico trial court erroneously ceded jurisdiction to
Texas. Until the New Mexico appellate court addresses that matter, and because jurisdiction must
reside somewhere in the interim, we lift our stay and order the Texas trial court to confer
immediately with the New Mexico Court of Appeals, where the case is currently pending. See TEX.
2
The A ct dis tinguis hes between child cus tody “determinations ” and “proceeding s .” A child cus tody
determination “means a judgment, decree, or other order of a court providing for the legal cus tody, phys ical cus tody,
or vis itation with res pect to a child. The term includes a permanent, temporary, initial, and modification order.” UNIF .
CHILD CUST ODY JUR . & ENF . A CT § 102(3), 9 U.L.A . 658 (1997). A child cus tody proceeding “means a proceeding in
which legal cus tody, phys ical cus tody, or vis itation with res pect to a child is an is s ue . . . [and] includes a proceeding
for divorce, s eparation, neglect, abus e, dependency, guardians hip, paternity, termination of parental rights , and protection
from domes tic violence, in which the is s ue may appear.” Id. § 102(4). Therefore, Richard’s original petition for divorce
may als o be characterized as a “child cus tody proceeding” under the UCCJEA .
3
Child Custody Jur i s d i c t i o n and Enforcement Act Summary, UNIFORM LAW COMMISSION ,
http://www.uniformlaws .org/A ctSummary.as px?title=Child Cus tody Juris diction and Enforcement A ct.
2
FAM . CODE § 152.201(a) (explaining “home state jurisdiction”); see also id. § 152.110(b) (“A court
of this state may communicate with a court in another state concerning a proceeding arising under
this chapter.”). Accordingly, we conditionally grant relief.
***
Richard Hompesch, III, and Carrie Dean were married in September 2010, and lived together
in Irving. The couple separated nineteen days after their wedding. Two months later Carrie, who
was pregnant with Richard’s child, moved to New Mexico without notifying Richard.
In February 2011, Richard filed for divorce in Dallas County and sought orders concerning
the upcoming birth of their child. Carrie was personally served with process in Albuquerque, New
Mexico. She gave birth to a son, J.S.D., in New Mexico, and subsequently answered the Texas case.
J.S.D. has resided in New Mexico with Carrie continuously since his birth. After learning of J.S.D.’s
birth, Richard amended his petition to request shared custody and sought Carrie’s compelled return
to Dallas with J.S.D.
Carrie then petitioned a New Mexico court to adjudicate custody pursuant to the New Mexico
Child Custody Jurisdiction and Enforcement Act.4 Carrie alleged that the New Mexico court, and
not Texas, had jurisdiction because New Mexico was J.S.D.’s “home state.” See N.M. STAT . § 40-
10A-201(a) (setting forth substantively identical bases for “home state jurisdiction” to those found
in Texas Family Code section 152.201(a)). She simultaneously sought dismissal of the Texas
proceeding.
4
New M exico adopted the UCCJEA in 2001, and its provis ions relevant to this cas e are s ubs tantially the s ame
as thos e of the Texas A ct. See Child Custody Jurisdiction and Enforcement Act: UCCJEA Adoptions, UNIFORM LAW
COMMISSION , http://uniformlaws .org/Shared/docs /UCCJEA adoptions .pdf; see also N.M . ST AT . § 40-10A -101 et s eq.
3
The Texas and New Mexico trial courts, along with both parties’ counsel, conferred in late
August 2011.5 See N.M. STAT . § 40-10A-110(a) (providing that “[a] court of this state may
communicate with a court in another state concerning a proceeding arising under the Uniform
Child-Custody Jurisdiction and Enforcement Act”); TEX. FAM . CODE § 152.110(b) (same). The New
Mexico trial judge concluded that New Mexico was J.S.D.’s home state because he was born there.
J.S.D. had never lived anywhere else. Even though the New Mexico court did not find that New
Mexico was an inconvenient forum, or that the parties had engaged in unjustifiable conduct—the
two bases on which a home state may decline jurisdiction6 —the New Mexico court deferred to the
Texas court to “make the first call.”
The Texas associate judge concluded that Texas had jurisdiction over the proceedings
because Richard filed his divorce petition in Texas first. Based on that decision, and even though
it thought that “New Mexico does have jurisdiction . . . [and is J.S.D.’s] home state,” the New
Mexico court dismissed Carrie’s pending custody suit without prejudice. It noted that Carrie’s
custody suit could be “refiled if in fact—somewhere along the line it’s discovered that Texas doesn’t
have jurisdiction.”
When the New Mexico trial court dismissed the case, the Texas district court adopted the
associate judge’s recommendations, which appointed Richard and Carrie as J.S.D.’s Temporary Joint
5
Purs uant to s ections 201.005(a) and 201.007(a) of the Texas Family Code, the Texas dis trict court as s ociate
judge conducted the conference with the New M exico trial court. See T EX. FAM . CODE §§ 201.005(a), .007(a) (providing
that a dis trict judge “may refer to an as s ociate judge any as pect of a s uit over which the court has juris diction under this
title” and enumerating an as s ociate judge’s powers ).
6
UNIF . CHILD CUST ODY JUR . & ENF . A CT §§ 201(a), 207, 208, 9 U.L.A . 671, 682–84 (1997) (emphas es added);
see also N.M . ST AT . §§ 40-10A -201(a), -207, -208; T EX. FAM . CODE §§ 152.201(a), .207, .208.
4
Managing Conservators, granted Carrie the right to establish J.S.D.’s residence in either Dallas or
Albuquerque during pending appeals, and set forth guidelines for both parents’ access to J.S.D.
Carrie appealed the New Mexico trial court’s dismissal order to the New Mexico Court of
Appeals. Earlier this year, that court issued two proposed summary dispositions7 proposing to hold
that New Mexico is J.S.D.’s home state with exclusive jurisdiction over custody and visitation.8
Carrie’s New Mexico appeal has since moved to the court’s general calendar, where it remains
pending. See N.M.R.A. Rule 12-210(B), (D) (describing general and summary calendar processes).
After unsuccessfully seeking mandamus relief from the court of appeals in the Texas case,
___ S.W.3d ___, Carrie petitioned this Court for a writ of mandamus. She concurrently sought a
stay of the Texas trial court’s order, which we granted. We must decide whether the Texas court
properly assumed jurisdiction over the custody determination. Richard makes a number of
arguments based on his desire to be involved with Carrie’s prenatal care and J.S.D.’s birth. Because
Carrie has already given birth to J.S.D., we limit our discussion to proceedings involving his custody.
***
7
W hen a cas e is placed on the s ummary calendar, the appellate court is s ues a propos ed dis pos ition and s tates
the bas is for its propos a l. T h e p arties then have twenty days from the date of s ervice of the notice of propos ed
dis pos ition to file memoranda as to why the dis p o s it ion s hould or s hould not be made. A fter reviewing any filed
memoranda, “the appellate court will either reas s ign the cas e to a nons ummary calendar, is s ue another notice of propos ed
s ummary dis pos ition or proceed to decide the cas e by opinion or order.” N.M .R.A . Rule 12-210(D).
8
See New M exico Court of A ppeals ’ s econd propos ed s ummary dis pos ition holding, in relevant part, that:
New M exico is [J.S.D.’s ] “ h o me s t a t e ” and, as s uch, New M exico has exclus ive and paramount
juris diction over the cus tody and vis itation is s ues relating to [J.S.D.]. [T]he dis trict court erred in
ceding juris diction to Te xa s and dis mis s ing the cas e. [The court] propos e[s ] to reject [Richard’s ]
reques t for a s tay pending the Texas Supreme Court decis ion, and . . . again propos e[s ] to revers e the
dis trict court and remand for the dis trict court to proceed to exercis e its juris diction and determine the
cus tody and vis itation is s ues relating to [J.S.D.].
5
The Act, as adopted by Texas and New Mexico, states that a court 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 . . .
(2) a court of another State does not have jurisdiction under paragraph (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 2079 and 208,1 0 and:
(A) the child and the child’s parents, or the child and at least one 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 paragraph (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 207 or 208; or
(4) no court of any other State would have jurisdiction under the criteria specified
in paragraph (1), (2), or (3).
UNIF. CHILD CUSTODY JUR. & ENF. ACT § 201(a), 9 U.L.A. 671 (1997) (emphases added); see also
N.M. STAT . § 40-10A-201(a); TEX. FAM . CODE § 152.201(a).
These four grounds provide “the exclusive jurisdictional basis for [a Texas court to] mak[e]
a child custody determination.” TEX . F A M . CODE § 152.201(b). So, unless a court finds that it has
jurisdiction under one of the four enumerated grounds, it cannot exercise jurisdiction over a child
9
UNIF . CHILD CUST ODY JUR . & ENF . A CT § 207, 9 U.L.A . 682 (1997) (“Inconvenient Forum”) (allowing a court
of this State with juris diction to make a child-cus tody determination under this A ct to “decline to exercis e its juris diction
at any time if it determines that it is an inconvenient forum under the circums tances and that a court of another State is
a more appropriate forum”).
10
UNIF . CHILD CUST ODY JUR . & ENF . A CT § 208, 9 U.L.A . 683–84 (1997) (“ Juris diction Declined by Reas on
of Conduct”) (allowing a court to decline juris diction upon a finding that “a pers on s eeking to invoke its juris diction has
engaged in unjus tifiable conduct” in certain s ituations ).
6
custody determination. Furthermore, the drafters made clear that one of the Act’s primary purposes
was to prioritize the child’s home state. See UNIF. CHILD CUSTODY JUR. & ENF. ACT Prefatory Note,
9 U.L.A. 649–51 (1997). “Home state” means:
[T]he State in which a child lived with a parent or a
person acting as a parent for at least six consecutive months immediately before the
commencement of a child-custody proceeding. In the case of a child less than six
months of age, the term means the State in which the child lived from birth with any
of the persons mentioned.
See UNIF. CHILD CUSTODY JUR. & ENF. ACT § 102(7), 9 U.L.A. 658 (1997) (emphasis added); see
also N.M. STAT . § 40-10A-102(7); TEX. FAM . CODE § 152.102(7).
Section 152.201(a) of the Texas Family Code codified section 201(a) of the Act. The Texas
Act also codified the Act’s “home state” definition, which gives concrete guidance for instances in
which a party sues for custody of a child when the child at issue is less than six months old. See
TEX. FAM . CODE § 152.102(7). Once the home state is correctly identified, jurisdiction in that state’s
courts is exclusive unless that state properly cedes jurisdiction based on circumstances the statute
prescribes.1 1 See TEX. FAM . CODE §§ 152.201(b), .202(a) (“Subsection [152.201](a) is the exclusive
jurisdictional basis for making a child custody determination by a court of this state” and “a court
of this state which has made a child custody determination consistent with [s]ection 152.201 . . . has
exclusive continuing jurisdiction over the determination.”).
Although the home state cannot be determined before a child is born, it was ascertainable
when Carrie filed the New Mexico case and when the Texas and New Mexico courts conferred.
11
For example, judicial findings of unjus tifiable conduct by a parent s eeking to affect juris diction under the
s tatute according to s ection 208 might res ult in another s tate having juris diction. See UNIF . CHILD CUST ODY JUR . & ENF .
A CT § 208, 9 U.L.A . 683–84 (1997).
7
New Mexico is J.S.D.’s home state—he was born there and has lived there ever since. When the
Texas and New Mexico courts discussed the matter, the New Mexico court had not yet declined
jurisdiction under the Act, and the Texas court should not have assumed it at that time. Instead, the
two courts should have conducted a more complete examination of which state had jurisdiction
under the Act to decide custody issues after J.S.D.’s birth.
Whether the Texas divorce action was filed first is irrelevant in determining jurisdiction over
custody matters, as the two proceedings involve different inquiries. See, e.g., Seligman-Hargis v.
Hargis, 186 S.W.3d 582 (Tex. App.—Dallas 2006, no pet.) (holding that trial court’s jurisdiction
to hear divorce action did not automatically give it authority to decide child custody issues as well);
see also Boots v. Lopez, 6 S.W.3d 292 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (stating
that trial court’s jurisdiction to resolve certain issues in divorce action may be limited when it lacks
jurisdiction under the Uniform Child Custody Jurisdiction Act). Jurisdiction over custody
determinations is governed by the Act, regardless of whether there is an ongoing divorce. See, e.g.,
Arnold v. Price, 365 S.W.3d 455 (Tex. App.—Fort Worth 2011, no pet.) (holding that California,
not Texas, was “home state” for child born in California who resided in California from birth until
divorce trial, regardless of father’s filing for divorce and custody in Texas prior to child’s birth);
Waltenburg v. Waltenburg, 270 S.W.3d 308 (Tex. App.—Dallas 2008, no pet.) (holding that Texas,
not Arizona, was child’s “home state” immediately upon birth in Texas when child remained in
Texas with mother after birth until filing of petition, regardless of father’s filing for divorce in
Arizona prior to child’s birth). That is not to say the divorce proceedings are irrelevant, as they may
influence a home state’s decision about its forum’s convenience. See, e.g., UNIF. CHILD CUSTODY
8
JUR. & ENF. ACT §§ 201(a), 207, 9 U.L.A. 671, 682–83 (1997) (permitting home state to decline
jurisdiction if it is an inconvenient forum). But one state may have jurisdiction over custody even
if the divorce is decided by another state’s court. See TEX. FAM . CODE § 6.308(a) (stating that a
court “may” exercise jurisdiction over portions of a divorce action for which it has authority, not that
it must); see also Boots, 6 S.W.3d at 294 (noting that “the language of the statute is discretionary,
not mandatory” and that “it was within the trial court’s discretion whether to exercise partial
jurisdiction”).
***
Richard contends that if section 152.201(a) gives New Mexico exclusive jurisdiction, it is
unconstitutional. He argues that section 152.201(a) violates the separation of powers doctrine and
the open courts provision of the Texas Constitution, as well as the Texas Equal Rights Amendment
and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
We find these arguments unpersuasive.
The separation of powers doctrine prohibits one branch of government from exercising a
power belonging inherently to another. See TEX. CONST . art. II, § 1; see also Gen. Servs. Comm'n
v. Little-Tex Insulation Co., 39 S.W.3d 591, 600 (Tex. 2001); Tex. Ass'n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 444 (Tex. 1993). The doctrine is violated “‘only when the functioning of the
judicial process in a field constitutionally committed to the control of the courts is interfered with
by the executive or legislative branches.’” Little-Tex Insulation Co., 39 S.W.3d at 600 (quoting State
Bd. of Ins. v . Betts, 308 S.W.2d 846, 851–52 (Tex. 1958)). The Texas Constitution provides that
“[d]istrict court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions
9
. . . except in cases where exclusive . . . jurisdiction may be conferred by this Constitution or other
law on some other court.” TEX. CONST . art. V, § 8 (emphasis added).
Richard argues that because section 152.201(a) states that a Texas court has jurisdiction “only
if” one of the four statutory scenarios exists, the Legislature has, in essence, prevented the Texas
district court from making custody determinations before a child is born. We disagree.
By enacting section 152.201(a), the Legislature did not encroach upon the judiciary’s power
to interpret laws, nor did it decide whether the Texas trial court had jurisdiction. These
determinations, still within the province of the courts, are simply subject to a rationally based policy
that appreciates the multi-state arena in which custody determinations often occur. Section
152.201(a) does not violate the separation of powers doctrine.
Richard also contends that section 152.201(a) violates the open courts provision of the Texas
Constitution,1 2 which provides, “[a]ll courts shall be open, and every person for an injury done him,
in his lands, goods, person or reputation, shall have remedy by due course of law.” TEX. CONST . art.
I, § 13. But the right to a remedy by due course of law does not require that the remedy be available
in Texas.
To establish an open courts violation, Richard must show that (1) he has a well-recognized
common law cause of action that is being restricted and (2) the restriction is unreasonable or
12
Richard alleges that s ection 152.201(a) “violates his remedy by [d]ue [c]ours e of [l]aw” bas ed on the open
courts provis ion under article I, s ection 13 of our Cons titution—not s ection 19 which addres s es due cours e of law in the
context of deprivatio n o f life , liberty, property, privileges , or immunities . Compare T EX. CONST . art. I, § 13 (open
courts ), with § 19 (“life, liberty, property, privileges or immunities ”). W hile we have recognized that the open courts
provis ion is a due proces s guarantee, see Sax v. Votteler, 648 S.W .2d 661, 664 (Tex. 1983), Richard’s arguments here
do not rely on s ection 19 due proces s ; our dis cus s ion here addres s es Richard’s “due cours e of law” challenge, s pecifically
in the open courts doctrine context.
10
arbitrary when balanced against the statute’s basis and purpose. Owens Corning v. Carter, 997
S.W.2d 560, 573 (Tex. 1999).
Even assuming that Richard can satisfy the first requirement, he has not established the
second. In Sax, we concluded that a statute “effectively abolishe[d] a minor’s right to bring [her]
well-established common law cause of action without providing a reasonable alternative” and thus
violated article I, section 13 of the Texas Constitution. Sax v. Votteler, 648 S.W.2d 661, 667 (Tex.
1983) (emphasis added). A statute that otherwise withdraws such common law remedies will be
“‘sustained only when it is reasonable in substituting other remedies . . . [but will] not [be] sustained
when it is arbitrary or unreasonable.’” Id. at 665 (quoting Lebohm v. City of Galveston, 275 S.W.2d
951, 955 (Tex. 1955)).
Here, Richard argues that if New Mexico is J.S.D.’s home state, the Act deprives him of a
remedy in Texas. While this is true, requiring Richard to pursue his custody claim in New Mexico
rather than Texas preserves a reasonable alternative. Richard may pursue his custody claims in New
Mexico, and he has neither pleaded nor proved that New Mexico is an inadequate forum. Section
152.201(a) does not violate the open courts provision of the Texas Constitution.
Lastly, section 152.201(a) violates neither Richard’s equal protection rights under the Texas
Equal Rights Amendment nor the Fourteenth Amendment to the United States Constitution. The
Texas Equal Rights Amendment provides that “[e]quality under the law shall not be denied or
abridged because of sex, race, color, creed, or national origin.” TEX. CONST . art. I, § 3a. Richard
asserts that the home state rule violates this provision because a woman controls where she lives
prior to giving birth, and that denies the father the right to participate in prenatal decisions. We have
11
already determined that this contention is not before us, as Carrie has already given birth. But
Richard also complains that “home state jurisdiction” unconstitutionally deprives him of immediate
post-birth involvement.
We have applied a three-step evaluation to determine whether the Amendment has been
violated. See Bell v. Low Income Women of Texas, 95 S.W.3d 253, 257–64 (Tex. 2002). First, we
consider whether equality under the law has been denied. Id. at 257. If it has, we must determine
whether equality was denied “because of a person’s membership in a protected class.” Id. (emphasis
added). If so, “the challenged action cannot stand unless it is narrowly tailored to serve a compelling
governmental interest.” Id.
Richard has not shown that he is denied equality under the law. Section 152.201(a) is a
procedural mechanism for determining jurisdiction. The statute defines home state to establish
where the proceedings should take place, without a bias for either parent. The place of birth is not
the relevant consideration. Instead, we look to “the State in which the child lived from birth with
[a parent or person acting as a parent].” UNIF. CHILD CUSTODY JUR. & ENF. ACT § 102(7), 9 U.L.A.
658 (1997) (emphasis added). Residence is determinative, and it favors neither women nor men.
A child could live “from birth” with his father or his mother, and sections 152.102(7) and 152.201(a)
would apply with equal force in either scenario.
For the same reasons, we conclude that the statute does not violate Richard’s equal protection
rights under the Fourteenth Amendment to the United States Constitution.1 3 Allowing the New
13
Some commentators s ugges t that the Texas Equal Rights A mendment may afford even broader rights than
the federal Fourteenth A mendment. See, e.g., Linda J. W harton, State Equal Rights Amendments Revisited: Evaluating
Their Effectiveness in Advancing Protection Against Sex Discrimination, 36 RUT GERS L.J. 1201, 1203 (2005) (noting
12
Mexico court to exercise jurisdiction as provided in each state’s adopted UCCJEA does not deny
Richard equality under the law.1 4
***
The New Mexico trial court concluded, correctly, that it had jurisdiction over the custody
dispute because New Mexico is J.S.D.’s home state. Yet the New Mexico trial court deferred to
Texas. We do not understand the basis for that deferral. As applied to the facts here, the Act would
have allowed Texas to exercise jurisdiction only if New Mexico had declined jurisdiction “on the
ground that [Texas] . . . is the more appropriate forum . . . under Section 152.207 or 152.208.” See
TEX. FAM . CODE § 152.201(a)(3). But New Mexico’s declination was not based on section 207
(inconvenient forum) or section 208 (jurisdiction declined by reason of conduct). See id.
§§ 152.207–.208. In fact, the New Mexico trial judge emphasized that its decision to decline
jurisdiction “was not based upon any finding of unjustifiable conduct or bad acts by either party.”
Rather, the New Mexico court dismissed the case solely because “Texas has determined it will
that “many s tate courts are interpreting s tate cons titutions as independent, and often broader, s ources of protection for
individual liberties . . . that go[] well beyond the protection afforded under the Federal Cons titution”); see also W illiam
W ayne Kilgarlin & Banks Tarver, The Equal Rights Amendment: Governmental Action and Individual Liberty, 68 T EX.
L. REV. 1545, 1559, 1570 (1990) (noting, for ins tance, that “a wider range of private activities can be attacked under the
E[qual] R[ights ] A [mendment] than under the [F]ourteenth [A ]mendment” and “s tate cons titutional guarantees may
confer broader rights ”).
14
Ric h a rd’s challenge under the federal Cons titution’s Equal Protection Claus e als o claims that s ection
152.201(a) violates his fundamental right concerning “ t h e care, cus tody, and control of [J.S.D.]” under Troxel v.
Granville, 530 U.S. 57 (2000) (plurality opinion). But as ide from his curs ory argument that “the UCCJEA deprives him
of meaningful participation in the child-cus tody proceedings by unilaterally choos ing [J.S.D.’s ] ‘home s tate’,” Richard
cites no authority for his propos ition that a parent’s opportunity to choos e a “home s tate” for cus tody proceedings is a
fundamental right. New M exico is s imply the forum in which Richard may litigate for cus tody.
13
exercise jurisdiction.” We appreciate that trial court’s effort to avoid an interstate conflict, but we
do not believe the Act allows deferral on that basis.
As it now stands, the New Mexico trial court has jurisdiction, but it has dismissed the case.
We anticipate that the New Mexico Court of Appeals, consistent with its reasoning in its proposed
summary disposition, will remand the case to the New Mexico trial court, but that has yet to occur.
Although the action is pending in the Texas court, we have stayed its proceedings while we decide
the merits. During this intolerable interregnum, Carrie, Richard, and J.S.D., seemingly, have
nowhere to turn.
There is an answer. We noted in Powell1 5 that the Act delineates the proper procedure when
custody proceedings have been filed in different states:
If the [Texas] court determines that a child custody proceeding has been commenced
in a court in another state having jurisdiction substantially in accordance with this
chapter, the [Texas] court . . . shall stay its proceeding and communicate with the
court of the other state. If the court of the state having jurisdiction substantially in
accordance with this chapter does not determine that the [Texas] court . . . is a more
appropriate forum, the [Texas] court . . . shall dismiss the proceeding.
TEX. FAM . CODE § 152.206(b) (emphasis added); see also N.M. STAT . § 40-10A-206(b) (same). We
have determined that the Texas court erred in denying the exclusivity of the New Mexico trial court’s
jurisdiction. Likewise, the New Mexico Court of Appeals has preliminarily determined that the New
Mexico trial court erred in deferring to Texas.
Given the New Mexico court’s dismissal and the Texas court’s erroneous retention, the
appropriate course is for the Texas trial court to confer as soon as possible with the New Mexico
15
Powell, 165 S.W .3d at 328 (quoting T EX. FAM . CODE § 152.206(b)).
14
Court of Appeals. Accordingly, without hearing oral argument, TEX. R. APP. P. 52.8(c), we lift our
stay and order the Texas court to communicate promptly with the New Mexico Court of Appeals.
See TEX. FAM . CODE § 152.206(b); see also Powell, 165 S.W.3d at 328. Unless that court
“decline[s] to exercise jurisdiction on the ground that [Texas] is the more appropriate forum to
determine [J.S.D.’s] custody . . . under Section 207 or 208,” the trial court shall dismiss the child
custody portion of the case. See UNIF. CHILD CUSTODY JUR. & ENF. ACT § 201(a)(3), 9 U.L.A. 671
(1997); see also N.M. STAT . § 40-10A-201(a)(3); TEX. FAM . CODE § 152.201(a)(3). We are
confident the trial court will comply, and our writ will issue only if it does not.
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Wallace B. Jefferson
Chief Justice
OPINION DELIVERED: December 21, 2012
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