Hector Cortez v. Veronica Garza Cortez

Opinion issued December 29, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00296-CV
———————————
HECTOR CORTEZ, Appellant
V.
VERONICA GARZA CORTEZ, Appellee
On Appeal from the 505th District Court
Fort Bend County, Texas
Trial Court Case No. 12-DCV-199184
OPINION
This is a suit affecting the parent-child relationship (SAPCR). Appellant,
Hector Cortez, and appellee, Veronica Garza Cortez, were divorced in 2013, and the
divorce decree required that the primary residence of their minor children was to be
in Fort Bend County, Texas, as of August 1, 2014. In 2015, Hector filed a motion
for enforcement of the divorce decree, seeking an order that Veronica return the
children from where they had been living with her in Mexico, and a motion to modify
the parent-child relationship to grant Hector the right to designate the primary
residence of the children. The trial court declined to exercise jurisdiction under the
Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). In five issues,
Hector argues that (1) the trial court failed to correctly construe the “home state”
provision of the UCCJEA; (2) the trial court erred by not concluding that Texas had
initial child custody jurisdiction; (3)–(4) the trial court erred by concluding that
Texas had lost continuing exclusive jurisdiction, a conclusion that was not supported
by the record; and (5) the trial court abused its discretion when it declined to hear
Hector’s motion for enforcement of the geographical restriction.
We affirm.
Background
Hector and Veronica married in 2001 and had two children: a son born in 2004
and a son born in 2009. Both children were born in Texas.
In June 2012, Hector filed for divorce in Fort Bend County, Texas. In August
2012, Veronica and the children moved to Monterrey, Mexico. On January 22, 2013,
the trial court signed an agreed final divorce decree. The agreed divorce decree
named Hector and Veronica as joint managing conservators of the children and
2
granted Veronica the exclusive right to designate the primary residence of the
children, “subject to the geographic restrictions as stated more particularly herein.”
The decree included the following provision:
IT IS ORDERED that the primary residence of the children shall be
Fort Bend County, Texas beginning on August 1, 2014. The parties
acknowledge and agree that the children are currently living in
Monter[r]ey, Mexico with Veronica Garza De Cortez. The parties have
further agreed and IT IS THEREFORE ORDERED that the children
shall return to Fort Bend County, Texas to live on or before August 1,
2014. Veronica Garza De Cortez is ORDERED to return the children
to Fort Bend County, Texas on or before August 1, 2014 for the purpose
of designating the permanent residence of the children in Fort Bend
County, Texas for all times thereafter. Beginning August 1, 2014 the
parties shall not remove the children from Fort Bend County, Texas for
the purpose of changing the primary residence of the children until
modified by further order of the court of continuing jurisdiction or by
written agreement signed by the parties and filed with the court.
The decree stated that the “Home State” of both children was Texas. The decree also
included a Standard Possession Order addressing Hector’s periods of possession of
the children, including provisions for extended periods of possession during the
summer. The agreed divorce decree obligated Hector to pay child support and
contractual alimony, and it obligated him to pay for health insurance coverage for
the children.
On April 21, 2015, Hector filed a petition to modify the parent-child
relationship in the Fort Bend County court. This petition recited that the court had
“continuing, exclusive jurisdiction,” stated that the children’s “County of residence”
was Fort Bend County, and stated that Veronica was a “nonresident of Texas.” In
3
this filing, Hector stated his belief that the parties would enter into an agreement
concerning modification of possession of and access to the children and modification
of child support requirements. Hector requested that the trial court make a finding
concerning whether a risk of international child abduction by Veronica existed, and
he requested that the trial court enter several temporary orders, including an order
granting him the exclusive right to designate the primary residence of the children,
restricting the residence of the children to Fort Bend County, enjoining Veronica
from removing the children from a designated geographic area, and requiring
Veronica to surrender the children’s passports. The trial court signed temporary
orders but did not make a finding concerning the risk of international child
abduction.
That same day, Hector filed a “Motion for Enforcement of Possession or
Access.” In this motion, Hector alleged that Veronica had failed to comply with the
agreed divorce decree, specifically, the provisions requiring her to return to Fort
Bend County with the children by August 1, 2014, and to establish the children’s
primary residence within Fort Bend County. Hector alleged that Veronica had also
failed to comply with the agreed divorce decree “by failing to surrender the children”
to him on two or more occasions. He filed a supporting affidavit in which he averred
that Veronica had not returned to Fort Bend County “even for a short period of time,”
and as a result, he had not seen his children “in over a year.” He requested that the
4
trial court hold Veronica in contempt and that he be allowed additional periods of
possession “to compensate for those periods denied by [Veronica].” The trial court
ordered Veronica to appear before the court and respond to Hector’s motion.
In response to Hector’s motions, Veronica filed a plea to the jurisdiction, a
request for the trial court to decline jurisdiction under the UCCJEA, and an original
answer. Veronica alleged that the court no longer had continuing exclusive
jurisdiction because neither the children nor Veronica had a significant connection
to Texas and there was no substantial evidence in Texas concerning the children’s
care, protection, training, and personal relationships. She argued that Mexico was
the children’s “home state,” that Texas did not have jurisdiction to make an initial
child custody determination, that Texas did not have emergency jurisdiction over the
children, and that the court, therefore, lacked the power to modify the agreed divorce
decree. She further argued that, if the court found that it did have continuing
exclusive jurisdiction, the court should decline to exercise its jurisdiction because
Texas is an inconvenient forum, and Monterrey, Mexico, is a more appropriate
forum. Veronica also filed a counter-petition to modify the agreed divorce decree,
subject to her plea to the jurisdiction. In this counter-petition, Veronica requested,
among other things, “that the residence of the children be restricted to no lesser area
than the state of Texas and Monterrey, Mexico.”
5
Veronica attached an affidavit to her counter-petition to modify. She averred
that she and the children had lived in Monterrey, Mexico, since September 2012,
and that they moved there at Hector’s request after he had filed for divorce. She
averred that the last time Hector had seen the children in person was in Texas in
January 2013 when the divorce decree was signed and that he had not visited them
in Mexico because he told her that he had “some issue with his passport.” She also
averred that Hector travels extensively for work—sometimes up to three weeks per
month—and he occasionally travels outside of the United States. Veronica stated
that Hector’s mother lived close by in Monterrey, but she rarely saw the children,
even though Veronica invited her to family events. She averred that Hector rarely
answers when she calls him and that he primarily communicates with the children
through their gaming console. She averred that, at the time Hector filed his
modification petition, Hector had not spoken with the children in three months.
Veronica averred that Hector had only sent the children Christmas presents
once in over two years and that he had never sent any birthday presents. She stated
that after she and the children moved to Monterrey in September 2012, Hector had
never requested that she bring the children to the airport for any possession periods
until he emailed her with a request in June 2015 to spend the month of July 2015
with the children in Houston. Veronica agreed, but Hector never responded to
confirm travel arrangements.
6
Veronica also averred that she had since remarried and she had been pregnant
during the summer of 2014, when she was supposed to move back to Fort Bend
County, as provided for in the divorce decree. Veronica had medical complications
during this pregnancy, and she averred that she discussed those problems with
Hector and that he agreed she and the children did not have to move back to Texas,
but could stay in Mexico through 2014. Veronica averred that she was currently
pregnant but again had health complications and could not fly to Texas for court
proceedings. She further averred that Hector had stopped paying his spousal
maintenance payments and had removed the children from his health insurance. She
stated that the children were covered through her husband’s health insurance, but
they would lose that coverage if they moved to the United States, as would her
husband, who has a brain tumor. She stated that the children attend a “very reputable
private school” in Monterrey free of charge because she works there. Veronica
averred that removing the children from her care would present a danger to the
children’s “emotional health, safety and welfare and mental well-being,” noting that
they had not spent any time with Hector in over two years and that Hector travels
frequently for his job.
In February 2016, while his earlier-filed motions were still pending before the
trial court, Hector filed a “Motion for Determination of Wrongful Retention.” In this
motion, Hector stated that he intended to file an application for return of the children
7
from Mexico pursuant to the Hague Convention on Civil Aspects of International
Child Abduction (Hague Convention) and the federal International Child Abduction
Remedies Act (ICARA). Hector argued that the children’s habitual residence was
Texas: the children were born in Texas and they lived in Texas until August 2012,
when Veronica moved with the children to Monterrey. Hector argued that he and
Veronica intended for the children to live in Mexico on a temporary basis, and he
did not agree to “the permanent change of residence of the children from Texas to
Mexico.” Hector argued that he had rights of custody to the children pursuant to the
agreed divorce decree, which named him as a joint managing conservator and
awarded him possession rights under a Standard Possession Order. He further argued
that he was exercising his custody rights at the time of the children’s removal from
Texas “and would continue to be exercising those rights but for [Veronica’s]
retention of the children in Mexico and interference with [Hector’s] maintaining
contact with them.” Hector argued that the trial court retained continuing exclusive
jurisdiction over the children, and he requested that the court determine that
Veronica had wrongfully removed the children from Texas, their habitual residence,
and had wrongfully retained the children in Mexico in violation of the agreed divorce
decree.
In March 2016, Veronica filed suit in Mexico seeking termination of Hector’s
parental rights to the children. Veronica alleged that the parties agreed, in the agreed
8
divorce decree, that she would establish her domicile in Monterrey. She also alleged
that Hector agreed that he would pay travel expenses for the children’s visitation and
that he would include the children on his health insurance, but he did not comply
with either requirement. She alleged that, after the divorce, Hector had not seen the
children or had parenting time with them and that he had abandoned the children.
She therefore sought termination of Hector’s parental rights.1 In this petition,
Veronica did not make any allegations that Hector had engaged in domestic violence
against her or against the children, and there is no evidence of domestic violence in
the appellate record.
In Mexico, Hector filed an application for return of the children under the
Hague Convention in May 2016. The presiding judge in that proceeding ordered
Hector to inquire if the Fort Bend County trial court would issue a determination on
whether the removal or retention of the children was wrongful, as it was allowed to
do before the Mexican court ruled on the merits of the Hague Convention
proceeding. At Hector’s request, the Fort Bend trial court agreed to make this
1
In filings in the trial court, Hector asserted that this proceeding in Mexico was
dismissed on June 22, 2018. The appellate record contains a copy of Veronica’s
original petition and an order transferring venue to another court in Mexico, but it
does not contain an order or judgment dismissing the proceeding. The record does
contain an email exchange between the trial court and the Mexican court which
includes an email from the judge of the Mexican court that references June 22, 2018,
but this email is in Spanish and no English translation of this email is contained in
the record.
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determination. On December 6, 2016, the Fort Bend trial court determined that “the
retention of the children in Mexico by their mother, Respondent Veronica Garza, on
August 1, 2014, breached the child custody rights of Hector Xavier Cortez, pursuant
to the [Hague] Convention Article 3.” The appellate record does not indicate that the
proceeding under the Hague Convention in Mexico has been resolved. The record
contains evidence reflecting that Veronica filed an “amparo” proceeding in Mexico
in December 2016 that had the effect of staying resolution of the Hague Convention
proceeding.
However, on August 21, 2018, the Fort Bend trial court issued a ruling
declining to exercise jurisdiction over the case. Hector filed a motion for
reconsideration of this ruling, arguing that the trial court had abused its discretion
by declining jurisdiction and that it had erred in finding that Texas was an
inconvenient forum because Veronica had engaged in unjustifiable conduct to create
jurisdiction in Mexico.
On November 20, 2018, the Fort Bend trial court signed an order informing
the parties and the court in Mexico hearing Veronica’s suit against Hector that it
declined jurisdiction “as it pertains to modification of the Parent-Child Relationship,
further defined as possession and access, rights and duties and conservatorship,” but
that it retained jurisdiction “as to matters pertaining to child support enforcement
10
and modification.”2 This order stated, “Jurisdiction concerning the enforcement of
possession and access is under advisement.” Hector filed a motion for
reconsideration of this order as well.
The Fort Bend trial court signed another order declining jurisdiction over the
case—but retaining jurisdiction over child support matters—on April 10, 2019. This
order cited Texas Family Code section 152.202(a)(1) as the basis for declining
jurisdiction. The court issued findings of fact and conclusions of law in support of
its rulings. The Fort Bend trial court found, among other findings, that Veronica and
the children had moved to Mexico in September 2012 and had lived there
continuously ever since; that Veronica and Hector had agreed that the children could
continue to live in Mexico until August 1, 2014, and that the trial court had ordered
the children to return by that date; Hector had attempted to exercise visitation at least
seven times from 2013 through 2017, but this “was not facilitated by” Veronica;
Hector had “maintained a relationship with the children before, during and after the
[d]ivorce proceedings”;3 and the trial court had previously found that Veronica’s
2
At the hearing on the entry of this order, the trial court stated, “I’m not calling
witnesses from Mexico to come here and testify. That’s why I’ve declined
jurisdiction. . . . They’ve been there a long time.”
3
With respect to the findings that Veronica did not facilitate Hector’s attempts at
exercising visitation and that Hector maintained a relationship with the children, the
trial court expressly stated that these findings were based on evidence Hector
attached to a brief in support of the trial court’s retention of jurisdiction, specifically,
email exchanges between Hector and Veronica, and pictures of Hector with the
children before the divorce and on two court-ordered periods of visitation that
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retention of the children in Mexico after August 1, 2014, breached Hector’s custody
rights under the agreed divorce decree. The court concluded that “neither the
child[ren], nor the child[ren] and one parent, nor the child[ren] and a person acting
as a parent, have a significant connection with this state and that substantial evidence
is no longer available in the state concerning the child[ren’s] care, protection,
training and personal relationships.”
This appeal followed.
Jurisdiction Under the UCCJEA
In five issues on appeal, Hector challenges the trial court’s orders ruling that
it does not have exclusive continuing jurisdiction over Hector’s modification and
enforcement petitions. In his first two issues, Hector contends that the trial court did
not correctly construe the “home state” provision and erroneously concluded that
Texas did not have jurisdiction to make an initial child custody determination. In his
third and fourth issues, he contends that the trial court erred by concluding that it
lacked exclusive continuing jurisdiction because this conclusion was not supported
by evidence in the record. Finally, in his fifth issue, Hector argues that the trial court
erred by not hearing his motion for enforcement of the geographical restriction
contained in the agreed divorce decree. As part of this issue, Hector argues that the
occurred in 2016. The record also included evidence that Veronica sent the children
to Texas for court-ordered visitation with Hector on two occasions: for a week in
March–April 2016 and for a month during the summer of 2016.
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trial court erred to the extent it declined jurisdiction because Texas was an
inconvenient forum.
A. Standard of Review and Governing Law
Whether a trial court has jurisdiction under the UCCJEA is a matter of subject-
matter jurisdiction. In re Salminen, 492 S.W.3d 31, 38 (Tex. App.—Houston [1st
Dist.] 2016, orig. proceeding) (“Subject matter jurisdiction in child custody matters
is determined by reference to the UCCJEA, set out in Family Code Chapter 152.”);
Waltenburg v. Waltenburg, 270 S.W.3d 308, 313 (Tex. App.—Dallas 2008, no pet.)
(stating that UCCJEA is “exclusive jurisdictional basis for making a child custody
determination by a court of this state”). Whether a trial court has subject-matter
jurisdiction is a question of law that we review de novo. Salminen, 492 S.W.3d at
38; In re Burk, 252 S.W.3d 736, 739 (Tex. App.—Houston [14th Dist.] 2008, orig.
proceeding [mand. denied]). The party seeking to invoke the trial court’s jurisdiction
has the burden to allege facts that affirmatively demonstrate the court’s authority to
hear the case. Seligman-Hargis v. Hargis, 186 S.W.3d 582, 585 (Tex. App.—Dallas
2006, no pet.). We construe the pleadings in favor of the party invoking jurisdiction
and consider relevant evidence when necessary to resolve the jurisdictional issue.
Id.
In 1999, Texas adopted the UCCJEA, which “was designed, in large part, to
clarify and to unify the standards for courts’ continuing and modification jurisdiction
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in interstate child-custody matters.” In re Forlenza, 140 S.W.3d 373, 374 (Tex.
2004) (orig. proceeding). The UCCJEA “specifically grants exclusive continuing
jurisdiction over child-custody disputes to the state that made the initial custody
determination and provides specific rules on how long this jurisdiction continues.”
Id. at 375; In re Isquierdo, 426 S.W.3d 128, 131 (Tex. App.—Houston [1st Dist.]
2012, orig. proceeding). The UCCJEA also contains rules preventing another state
from modifying a child-custody determination while the state that made the original
determination retains exclusive continuing jurisdiction. Forlenza, 140 S.W.3d at
375; Hart v. Kozik, 242 S.W.3d 102, 106–07 (Tex. App.—Eastland 2007, no pet.)
(stating that UCCJEA’s “overarching purposes are to prevent conflicting
jurisdiction, relitigation of child custody issues, and deter child abduction,” and, to
that end, statute limits authority to make custody determinations to one court, even
though multiple states might have legitimate interest in parent-child relationship at
issue). For purposes of the UCCJEA, a foreign country is treated as if it were a state
of the United States. TEX. FAM. CODE ANN. § 152.105(a).
Under the UCCJEA, a Texas court has jurisdiction to make an initial child
custody determination in four situations, including, as relevant here, if
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 a person acting as a parent continues to
live in this state . . . .
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Id. § 152.201(a)(1); see id. § 152.102(8) (defining “initial determination” to mean
“the first child custody determination concerning a particular child”). Family Code
section 152.201(a) “is the exclusive jurisdictional basis for making a child custody
determination by a court of this state.” Id. § 152.201(b). The UCCJEA defines
“home state” as “the state in which a child lived with a parent . . . for at least six
consecutive months immediately before the commencement of a child custody
proceeding.” Id. § 152.102(7). “A period of temporary absence of a parent or a
person acting as a parent is part of the period.” Id.
Family Code section 152.202 addresses exclusive continuing jurisdiction of a
Texas court and provides:
(a) Except as otherwise provided in Section 152.204,4 a court of this
state which has made a child custody determination consistent
with Section 152.201 or 152.2035 has exclusive continuing
jurisdiction over the determination until:
(1) a court of this state determines 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 this state
4
Section 152.204 provides that Texas courts have “temporary emergency jurisdiction
if the child is present in this state and the child has been abandoned or it is necessary
in an emergency to protect the child because the child, or a sibling or parent of the
child, is subjected to or threatened with mistreatment or abuse.” TEX. FAM. CODE
ANN. § 152.204(a). Hector has not argued that the trial court has jurisdiction under
this provision.
5
Section 152.203 provides that, except as provided in section 152.204, a Texas court
may not modify a child custody determination made by a court of another state
except in certain circumstances. See TEX. FAM. CODE ANN. § 152.203. Hector did
not request that the trial court modify a child custody determination from another
state, and this section is therefore not applicable to this case.
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and that substantial evidence is no longer available in this
state concerning the child’s care, protection, training, and
personal relationships; or
(2) a court of this state or a court of another state determines
that the child, the child’s parents, and any person acting as
a parent do not presently reside in this state.
(b) A court of this state which has made a child custody
determination and does not have exclusive, continuing
jurisdiction under this section may modify that determination
only if it has jurisdiction to make an initial determination under
Section 152.201.
Id. § 152.202; id. § 152.102(3) (defining “child custody determination” to mean “a
judgment, decree, or other order of a court providing for legal custody, physical
custody, or visitation with respect to a child” and stating that term “includes
permanent, temporary, initial, and modification orders”).
“[E]xclusive jurisdiction continues in the decree-granting state as long as a
significant connection exists or substantial evidence is present.” Forlenza, 140
S.W.3d at 379 (noting that plain language of section 152.202(a)(1) provides that
jurisdiction continues until trial court determines no significant connection with
Texas exists and that substantial evidence concerning children’s care, protection,
training, and personal relationships is no longer available in Texas); In re Meekins,
550 S.W.3d 729, 738–39 (Tex. App.—Houston [1st Dist.] 2018, orig. proceeding).
Even if the child acquires a new home state, the state that made the initial child
custody determination retains exclusive continuing jurisdiction “so long as the
general requisites of the ‘substantial connection’ jurisdiction provisions are met.” In
16
re Tieri, 283 S.W.3d 889, 894 (Tex. App.—Tyler 2008, orig. proceeding [mand.
denied]). The state that made the initial child custody determination “is the sole
determinant of whether jurisdiction continues.” Id.; see In re J.P., 598 S.W.3d 789,
796 (Tex. App.—Fort Worth 2020, pet. denied) (“The UCCJEA gives [the court that
made an initial child custody determination] the sole power to decide whether it will
continue to exercise that jurisdiction.”).
B. Analysis
1. Whether Trial Court Had Jurisdiction to Make Initial Child
Custody Determination
In his first issue, Hector argues that the trial court failed to correctly construe
the “home state” provision of the UCCJEA. In his second issue, he argues that the
trial court erred by not concluding that Texas had jurisdiction to make an initial child
custody determination. Hector argues that Texas was the home state of the children
at the time he filed for divorce in June 2012.
Hector filed for divorce in Fort Bend County, Texas, in June 2012. It is
undisputed that the children had lived in Texas for the six consecutive months
immediately before Hector filed for divorce, which commenced the first child
custody proceeding involving the children. See TEX. FAM. CODE ANN. § 152.102(4)
(defining “child custody proceeding” as “a proceeding in which legal custody,
physical custody, or visitation with respect to a child is an issue” and stating that
term “includes a proceeding for divorce”), id. § 152.102(5) (defining
17
“commencement” as “the filing of the first pleading in a proceeding”). The children
did not move to Mexico with Veronica until August or September 2012, after Hector
had commenced the divorce proceeding. Hector is therefore correct that, at the time
he filed his divorce petition, Texas was the home state of the children. See id.
§ 152.102(7) (defining “home state” as “the state in which a child lived with a
parent . . . for at least six consecutive months immediately before the
commencement of a child custody proceeding”); Powell v. Stover, 165 S.W.3d 322,
328 (Tex. 2005) (holding that, in determining where child lived for purposes of
establishing home-state jurisdiction, trial court must consider child’s physical
presence in state).
Because Texas was the home state of the children on the date the divorce
proceeding commenced, Hector is also correct that Texas had jurisdiction under
Family Code section 152.201(a)(1) to make an initial child custody determination.
See TEX. FAM. CODE ANN. § 152.201(a)(1) (“[A] court of this state has jurisdiction
to make an initial child custody determination only if . . . this state is the home state
of the child on the date of the commencement of the proceeding . . . .”). Contrary to
Hector’s arguments in his first two issues on appeal, however, the trial court never
ruled that it did not have jurisdiction to make an initial child custody determination
or that Texas was not the children’s home state at the time Hector filed for divorce.
In fact, the agreed divorce decree, signed on January 22, 2013, correctly
18
acknowledged that Texas was the home state of the children. Additionally, the trial
court, in its findings of fact and conclusions of law entered after it declined to
exercise jurisdiction over Hector’s modification and enforcement petitions, correctly
found that it had initial child custody jurisdiction under section 152.201(a)(1) when
it signed the agreed divorce decree.
The relevant issue in this appeal is whether the trial court, after making an
initial child custody determination, retained exclusive continuing jurisdiction over
the children. Specifically, the issue is whether the trial court retained exclusive
continuing jurisdiction to rule on Hector’s motions for modification and enforcement
filed in April 2015. We therefore turn to that question.
2. Whether Trial Court Lost Exclusive Continuing Jurisdiction
In his third and fourth issues, Hector argues that the trial court erred by
concluding that it did not retain exclusive continuing jurisdiction because this
conclusion was not supported by evidence in the record. Specifically, Hector
contends that evidence before the trial court established that the children had a
significant connection with Texas and that substantial evidence concerning their
care, protection, training, and personal relationships is available in Texas.
As stated above, a court of this state which has made an initial child custody
determination has exclusive continuing jurisdiction over the determination until “a
court of this state determines that neither the child, nor the child and one
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parent . . . have a significant connection with this state and that substantial evidence
is no longer available in this state concerning the child’s care, protection, training,
and personal relationships,” or a court determines that the child and the child’s
parents do not presently reside in this state. TEX. FAM. CODE ANN. § 152.202(a).
Because it is undisputed that Hector still resides in Texas, we focus on whether the
children have a significant connection with Texas and whether substantial evidence
concerning their care, protection, training, and personal relationships is available in
Texas.
“[E]xclusive jurisdiction continues in the decree-granting state as long as a
significant connection exists or substantial evidence is present.” Forlenza, 140
S.W.3d at 379; In re A.C.S., 157 S.W.3d 9, 16 (Tex. App.—Waco 2004, no pet.) (“If
either a ‘significant connection’ exists or ‘substantial evidence’ is present, then
Texas retains jurisdiction.”). In determining whether the children have a significant
connection with Texas, courts consider “the nature and quality of the child’s contacts
with the State.” In re T.B., 497 S.W.3d 640, 645 (Tex. App.—Fort Worth 2016, pet.
denied). “A high level of physical presence in Texas is not necessary to satisfy the
significant-connection standard.” In re S.J.A., 272 S.W.3d 678, 685 (Tex. App.—
Dallas 2008, no pet.). Among other factors, courts consider whether the children
visited a parent in Texas and whether they maintained a close relationship with a
parent or other relatives in Texas, both of which are “important considerations under
20
the UCCJEA.” Forlenza, 140 S.W.3d at 377; see T.B., 497 S.W.3d at 646 (listing,
as some factors showing significant connection to Texas, whether child resides in
state, whether child attends school in state, whether child’s family resides in state,
and whether parent has made educational plans for child in state); A.C.S., 157
S.W.3d at 16 (“Visitation within the state is generally considered as evidence of a
significant connection, particularly when the children maintain a relationship with
relatives in the state other than the noncustodial parent.”).
The fact that one parent continues to reside in Texas, standing alone, is not
determinative and does not support an exercise of exclusive continuing jurisdiction.
Isquierdo, 426 S.W.3d at 133–34. The UCCJEA “does not premise the exclusive
continuing jurisdiction determination on which state has the most significant
connection with the child.” Forlenza, 140 S.W.3d 378 (noting that “[t]his relative
type of inquiry is appropriate under section 152.207, which allows a court with
exclusive continuing jurisdiction to decline it in favor of a more convenient forum,
but it does not affect the initial section 152.202 jurisdictional analysis”). The relevant
time frame for determining whether the trial court retains exclusive continuing
jurisdiction is when the motion to modify the prior custody order is filed. See id. at
376 (agreeing that determination of whether trial court retains exclusive continuing
jurisdiction is made “at the proceeding’s commencement,” or filing of motion to
modify prior custody order); A.C.S., 157 S.W.3d at 16 (“The pertinent time frame
21
for this determination is when the motion to modify the prior custody order is
filed.”).
Here, the trial court signed several orders declining jurisdiction over the case.
At Hector’s request, the trial court issued findings of fact and conclusions of law.
The trial court found that Veronica and the children had moved to Mexico in
September 2012, where they had lived continuously ever since. The court found that
the parties agreed, in the agreed divorce decree, that the children could continue to
live in Mexico until August 1, 2014, but the children would return to Fort Bend
County on or before that day. The court, citing email exchanges with Veronica that
Hector had attached to a “Motion for Determination of Jurisdiction,” found that
Hector attempted to exercise visitation on at least seven occasions “which was not
facilitated by” Veronica, specifically “Summer Possession 2013, Spring Possession
2014, April 2014, Summer Possession 2015, End of Year 2016, Summer Possession
2017, end of year visitation 2017.”6 The last four visitation attempts enumerated in
the trial court’s findings occurred after Hector had filed his modification and
enforcement petitions. The court found that Hector “maintained a relationship with
the children before, during and after the Divorce proceedings,” citing an exhibit
Hector attached to the “Motion for Determination of Jurisdiction.”
6
The record reflects, however, that Veronica did send the children to Texas for court-
ordered visitation with Hector twice—for a week in March 2016 and for a month in
the summer of 2016.
22
The trial court also made several findings concerning procedural occurrences
during the pendency of the case. The court found that, in March 2016, Veronica
initiated a suit in Mexico to terminate Hector’s parental rights to the children. The
court found that, in an order dated December 6, 2016, it ruled that Veronica’s
retention of the children in Mexico after August 1, 2014, “breached the child custody
rights of Hector Xavier Cortez pursuant to the [Hague] Convention Article 3.” The
court also found that it had issued three rulings declining jurisdiction over
modification of the parent-child relationship, but maintaining jurisdiction over child
support issues, in August 2018, November 2018, and April 2019. The court further
found “that no legal pleadings were filed until April 21, 2015, more than three years
after the mother and child[ren] moved to Mexico.” The trial court concluded that
“neither the child[ren], nor the child[ren] and one parent, nor the child[ren] and a
person acting as a parent, have a significant connection with this state and that
substantial evidence is no longer available in the state concerning the child[ren’s]
care, protection, training and personal relationships.” The trial court did not make
any findings and conclusions concerning whether Texas is an inconvenient forum.
Hector argues that the trial court erred by concluding that it does not retain
exclusive continuing jurisdiction over the case because the children have a
significant connection to Texas and substantial evidence concerning their care,
protection, training, and personal relationships is available in Texas. We disagree.
23
It is undisputed that Veronica and the children have lived in Mexico since
September 2012, and that they had lived in Mexico for nearly three years at the time
Hector filed his modification and enforcement petitions in April 2015. It is also
undisputed that Hector lived in Texas at the time he filed for divorce in June 2012
and has continued to live in Texas ever since. It is further undisputed that the parties
agreed, in the agreed divorce decree, that the children could live with Veronica in
Mexico until August 1, 2014, at which point she was to return to Fort Bend County
with the children, but Veronica remained in Mexico with the children after August
1, 2014.
The record contains evidence that the children have visited Hector in Texas
only twice since they moved to Mexico in September 2012—for a week in March
2016 and for a month in summer 2016—both of which occurred at the order of the
trial court, and both occurred after Hector filed his modification and enforcement
petitions. Hector presented evidence, in the form of email exchanges with Veronica,
that he had attempted to exercise visitation with the children in Texas on several
occasions prior to filing his modification and enforcement petitions—including a
month of possession in summer 2013, possession during Holy Week in spring 2014,
and a possible visitation in San Antonio in spring 2014—but Veronica did not
cooperate. The record also contained evidence that Hector could not visit the
children in Mexico due to issues with the State Department’s not renewing his
24
passport7 and that the children’s passports expired during the pendency of the
proceedings, and Hector and Veronica were unable to coordinate the necessary
documents and notarizations that needed to occur to renew the passports. Hector
submitted pictures demonstrating his involvement with the children before the
divorce, pictures from his online contacts with the children while they were living
in Mexico, and pictures from the two court-ordered visits he had with the children
in Texas in 2016.
The record before the trial court included an affidavit by Veronica that she
filed with her counter-petition to modify the agreed divorce decree. In this affidavit,
Veronica averred that she and the children have lived in Monterrey, Mexico since
September 2012, when they moved to Mexico at Hector’s request. Veronica and the
children live close to Hector’s mother in Monterrey, but she does not visit the
children often or attend events with the children, even though Veronica invites her.
Veronica averred that she has “attempted to promote” the relationship between
Hector and the children by telephone, but he rarely answers. She averred that, as of
July 2015, Hector had not seen the children in person since January 2013. She stated
that Hector and the children communicated through the children’s gaming console,
but she also stated that, as of the time she learned of Hector’s modification
7
Veronica averred that Hector told her that Mexican Border Patrol seized his
passport, but that he also told her that he had traveled internationally for his job.
25
proceeding, Hector had not attempted to speak with the children in three months.
Veronica averred that she had attempted to coordinate visitation between the
children and Hector in Houston for the month of July 2015, but Hector never
responded, and he did not cooperate with her when she told him the children’s
American passports were to expire in July 2015.
Veronica also averred that she had remarried and that she had health problems
during a pregnancy in summer 2014 that prevented her from moving back to Texas
with the children. She averred that she discussed these health concerns with Hector,
and he agreed that she and the children need not move back to Texas at that time.
She also averred that, when she signed the agreed divorce decree at Hector’s request,
he told her, “if August comes [August 2014] and you don’t want to come back [from
Monterrey], you can stay.” At the time of Veronica’s affidavit in July 2015, she was
again suffering health complications from another pregnancy and could not travel to
Texas. She averred that, in June 2014, Hector stopped making the contractual
alimony payments required by the divorce decree, and he stopped listing the children
as covered under his health insurance. Veronica averred that the children were
covered under her current husband’s health insurance, but the children would not be
covered in the United States. Veronica also averred that her current husband has a
brain tumor, and if he were to move with her and the children to the United States,
he and the children would lose their insurance coverage.
26
Veronica further averred that she works at an “expensive and very reputable
private school” in Monterrey and that the children attend the school at no cost. At a
hearing on Hector’s motion to determine jurisdiction, Veronica’s counsel
represented that the children were enrolled in “integration therapy” in Mexico as
required by the proceedings in the Mexican court.
Based on this record, the only connection the children have to Texas is the
fact that Hector lives in Texas. Since the children moved to Mexico in September
2012—a move that Veronica avers occurred at Hector’s direction—the children have
been to Texas to visit Hector twice, once for less than two weeks and once for a
month. There is no evidence in the record that, since moving to Mexico, the children
have had friends or other family members in Texas that they have visited, that they
have visited doctors in Texas, or that Hector has made any educational plans for the
children in Texas. See T.B., 497 S.W.3d at 646 (listing, as some factors showing
significant connection to Texas, whether child resides in state, whether child attends
school in state, whether child’s family resides in state, and whether parent has made
educational plans for child in state); A.C.S., 157 S.W.3d at 16 (“Visitation within the
state is generally considered as evidence of a significant connection, particularly
when the children maintain a relationship with relatives in the state other than the
noncustodial parent.”). Instead, the children live in Mexico, at least one member of
Hector’s family lives near them in Mexico, the children attend school in Mexico,
27
and the children attend therapy in Mexico. Evidence relevant to the children’s care,
protection, training, and personal relationships is thus available in Mexico, not in
Texas. The fact that Hector lives in Texas and the children have visited him here
twice is not enough to support a conclusion that the children have a significant
connection to Texas. See Isquierdo, 426 S.W.3d at 132–34 (concluding that children
did not maintain significant connection to Texas when children had spent previous
six years living out of Texas, children had not been present in Texas except for “the
few visitations” requested by father, children had had no contact with Texas in three
years preceding modification proceeding, and father did not make any visitation
requests during those three years, and concluding that father’s continued residence
in Texas, by itself, did not support exercise of exclusive continuing jurisdiction).
Additionally, there is no evidence that Veronica has had any connection to Texas
since she moved to Mexico in September 2012.
We therefore conclude that the trial court did not err by determining that
neither the children, nor the children and one parent, had a significant connection
with Texas and that substantial evidence is no longer available in Texas concerning
the children’s care, protection, training, and personal relationships. See TEX. FAM.
CODE ANN. § 152.202(a)(1); Isquierdo, 426 S.W.3d at 132–33, 135. We hold that
the trial court did not err by ruling that it no longer retains exclusive continuing
28
jurisdiction over the possession, access, and conservatorship aspects of the parent-
child relationship between Hector and the children.
We overrule Hector’s third and fourth issues.8
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Lloyd, and Landau.
8
In his fifth issue, Hector argues that the trial court erred by refusing to hear his
motion for enforcement of the geographic restriction contained in the agreed divorce
decree. In this issue, Hector argues that the trial court erred to the extent it declined
jurisdiction on the basis that Texas is an inconvenient forum. See TEX. FAM. CODE
ANN. § 152.207(a)–(b) (providing that if Texas court has jurisdiction under
UCCJEA, court may decline to exercise its jurisdiction if it determines that it is an
inconvenient forum and court of another state is more appropriate forum, and stating
that court “shall consider all relevant factors,” including eight specifically
enumerated factors). The trial court here did not make any findings or conclusions
concerning the factors contained in section 152.207(b). Instead, the trial court based
its decision on section 152.202(a)(1), concluding that it did not retain exclusive
continuing jurisdiction. Because we conclude that the trial court did not err by
concluding that it no longer retained exclusive continuing jurisdiction, the trial court
did not err by refusing to hear Hector’s motion for enforcement of the geographic
restriction, and we need not address the factors relevant to whether Texas is an
inconvenient forum, set out in section 152.207(b).
29