Motions to Transfer: Texas Family Code
The Texas Family code provides that transfer from a court of continuing, exclusive jurisdiction can be mandatory or discretionary. This issue typically comes up when a party to a child custody case would like to file a modification or enforcement action.
Although, modifications and enforcements can involve a multitude of different legal issues and facts, most of the time they are filed in relation to a child custody case. Generally, the parties will not dispute that a particular court has continuing, exclusive jurisdiction. With a few exceptions, a court obtains this status by issuing a final order. For instance, if Williamson County, Texas, issued the child custody order, it will retain jurisdiction of the case for subsequent modifications and enforcement actions — unless a party requests a transfer.
The rules regarding motions to transfer are complicated. In most civil cases the rules for transferring a case within the state to a different county are controlled by the Civil Practices and Remedies Code or the Texas Rules of Civil Procedure. This is not true for Family Law Cases.
Courts have held that, in a Suit Affecting the Parent Child Relationship, the Texas Family Code’s Transfer provisions supplant the Texas Rules of Civil Procedure, and other venue statutes, which govern venue challenges in other types of civil lawsuits. Courts have also held that there is no due order of pleadings rule in the Family Code. However, the party still needs to comply with the time requirements put forth in the Family Code on a motion to transfer.
A venue challenge, regarding timeliness of the motion to transfer, occurs when the responding party to a motion to transfer files objections to the motion or a controverting affidavit. As stated above, there are no “due order of pleadings” relating to family law motions to transfer.
Requirements for Filing Motion to Transfer
The Texas Family Code puts forth two requirements regarding the filing of a motion to transfer. The first relates to the petitioner or movant. The petitioner should file their motion to transfer at the “time of filing” the new lawsuit.
What does time of filing mean? It means contemporaneously (existing or happening during the same time period) with the motion to modify or motion for enforcement.
It’s difficult to believe that the Texas Courts would be hyper technical with the requirements for a motion to transfer. I don’t want to supplant my opinion in place of the Texas Courts, but it goes without saying that the further one gets from the time of filing the original lawsuit the less likely that party is complying with the rules.
The second requirement regarding timeliness of a motion to transfer applies to the respondent. This rule is a little more objective than the requirement of the movants motion to transfer. The respondent should file the motion to transfer by the same deadline as is required in filing an answer. The respondent has the Monday following the expiration of 20 days to file a motion to transfer.
Under the Texas Family Code there are two types of transfer: Mandatory and Discretionary. A mandatory transfer would be required if a party files a “timely” motion to transfer to another Texas county where the child or children have resided for six months or longer. The court will be required to transfer the case to the county where the child has resided for the prior 6 months.
If you are considering filing a motion to modify a parent-child relationship, and the children live in another county — and have lived there for more than six months — you should consult with an attorney prior to filing the lawsuit. If you don’t file the motion to transfer at the time of filing the initial pleadings, than you may waive your objection to venue.
There are compelling reasons for transferring cases to the county where the child has resided for the 6 months prior to the filing of the lawsuit. The witnesses to the case will be located in that county. Teachers, counsels, Doctors ect. It is easy to see why it would be important to deal with a child custody case in the county where the child has been residing.
I will address discretionary transfers in a subsequent post, but for now a discretionary transfer may apply to a situation where the child no longer resides in the county with exclusive, continuing jurisdiction, but has not resided in another county for at least 6 months.
If you are dealing with a modification or enforcement action relating to a child custody case you should consult with an attorney. These cases are incredibly complicated and having an experienced child custody lawyer is important.
Motions to Transfer/Child Custody Questions?
Call the Round Rock Law Offices of Clifford Swayze at 512-920-5080. We serve the following communities in Williamson County including Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor and Austin.