If you have a divorce or custody order from a California court and have moved to Texas, you probably have some questions about how it applies in your new home state.
When working with a custody order from another state, questions tend to fall into three categories: Application, Modification, and Enforcement.
Application of California Custody Order
The most common questions ask, "Now that I live in Texas, how do I apply this California custody order?" Texas child custody orders are more detailed than custody orders in many California cases. For example, a typical California custody order might say something to the effect that "Father gets possession of the children for Christmas in even-numbered years and Mother gets possession in odd-numbered years."
A Texas order, even one created from a free form from a law library, would say something similar to "In even-numbered years, Father gets the child beginning at the time the child's school is released for the school's Christmas break and ending at noon on December 28th and Mother gets the child beginning at noon on December 28th and ending at 6:00 p.m. on the day before the child's school resumes after the Christmas break. In odd-numbered years, Mother gets the child beginning at the time a child's school is released for the school's Christmas break and ending at noon on December 28th and Father gets the child beginning at noon on December 28th and ending at 6:00 p.m. on the day before the child's school resumes after the Christmas break.
Yes, some things really are bigger in Texas!!
These differences in specificity are why many Texas family law attorneys will flip your California custody order back and forth looking for more detail, but in all likelihood, it just isn't there.
So how do you apply this California custody order, when you live in Texas? The answer is that you do what you would have done if you still lived in California.
If you moved to Texas with the children and the other parent still live in California, you might want to modify the order as explained below.
If you moved to Texas and the other parent and the children stayed in California, again, you apply the order as if you still lived in California. Even if modifying the order makes sense, you'll have to modify it in California and if you want to enforce the order against the other parent who still lives in California, you'll have to do so in California, as explained below.
Modifying a California Child Custody Order
If you want to modify a child custody order that was issued by a court in California, generally you follow the rule that the order is modifiable in the state where the child lives. The idea behind that rule is that once the child has lived in Texas for six months, the child's most relevant facts about and witnesses to the child's school performance, medical condition, social relationships, and other activities are located in Texas. Similarly, if the child still lives in California, the same relevant facts and witnesses are located in California.
The child custody order is modifiable in the state where the child lives.See Tex. Family Code § 152.203
If you and the child have lived in Texas for at least six months you can ask a Texas judge to modify the order. Before a Texas judge can modify a California child custody order, the court in California that issued the original order must relinquish jurisdiction over the order to Texas.
If you are from California, you may be used to the courts providing useful forms applying to a wide variety of legal issues so that people can represent themselves. That's not the case in Texas and multi-state jurisdictional issues are complicated. Not only are they complicated, if you manage to get a Texas judge to modify the California order but you failed to follow the procedures perfectly, you will eventually find out that the the modified order is VOID and of no legal effect when you try to enforce it or exercise it. The best way to avoid that is to retain a family law attorney with significant multi-jurisdictional family law experience.
Enforcing a California Child Custody Order
If you want to enforce a child custody order that was issued by a court in California, you follow the rule that orders are enforceable in the state where the alleged violator lives. That means that if you and the child have moved to Texas and the other parent remained in California, you will have to sue the other parent in a California court for any alleged violations of the custody order no matter how long the child has lived in Texas.
Orders are enforceable in the state where the alleged violator lives.U.S. Const. amend IVX.
If the other parent lives in Texas, you will enforce the California child custody order in Texas, whether you and the child live in California, Texas, or any other state.
Enforcement cases are where parents experience the pain of the lack of specificity of California orders. When a court enforces an order, the court is being asked to do one or more of the following:
- Order the other parent to do something;
- Order the other parent to stop doing something;
- Make the other parent pay a fine; and
- Put the other parent in jail.
If you are trying to enforce a custody order, you are probably asking the judge to give you possession of your child. If that is all you want, this can be done through a habeas corpus action, which is procedurally simpler than full enforcement and requires much narrower evidence: All you have to do to win a habeas corpus action is prove to the judge that at that moment in time, you have the superior right to possession of the child. If the judge agrees, you will be given possession right then and there. If the judge does not agree, the other parent will be allowed to maintain possession of the child.
Usually, though, you also want to ask the judge to put the other parent in jail and make the other parent pay a fine. In Texas, we refer to that as a "contempt proceeding" and when a Texas attorney talks about "enforcement," it's these more draconian remedies that the attorney has in mind.
Enforcing a California child custody order against a parent who lives in Texas is a multi-step process that requires registration of the California order followed by a very specific request to the court, supported by detailed allegations of the other parent's violations. This is where California child custody orders often fall apart in Texas.
In Texas, enforcement by contempt (jail and/or fines) requires the the complaining party to allege and prove the "date, place, and, if applicable, the time of each occasion of" each violation. 1Tex. Family Code § 157.002(c). For example, a typical allegation might read like this:
Mother appeared at Father's residence to take possession of the child at the time and on the date that the child's school was regularly dismissed for the school's Christmas break, i.e. at 3:00 p.m. on December 18, 2020, and Father then and there violated the Final Order by failing to surrender possession of the child to Mother or her competent adult designee.
If the California child custody order merely says that "Mother gets the child for Christmas," how can a you draft a specific allegation as required by the Texas Family Code? You can't!! For that reason, the California order would not be enforceable by contempt in Texas. The judge might be able to enforce other remedies based on the parents' past practices such as awarding make up time and a judgment for attorney's fees and travel costs, but the real teeth of enforcement would be unavailable.
For those reasons, if a child custody order issued in California needs to be enforced in Texas, you'll need an attorney experienced in multi-jurisdictional enforcement issues. Likewise, if you live in Texas and someone is trying to enforce a California custody order against you, you will want to make sure you are defended by experienced counsel who understands what the court can and cannot do.