Monday, April 6, 2009
Dear Famularo & Associates: I was married in California about 10 years ago. About 5 years ago, I moved to Texas. After I learned that my husband had a drug problem, I filed for divorce in the state of Texas and the case is still pending. Even though the court ordered my husband to obtain professional help for his drug addiction, the court awarded him joint custody of our 2-year-old daughter. The divorce process has been so stressful for me that I lost my job and my apartment. I am now living in my sister's guest bedroom. I have been offered a job in California, and my parents will allow me to live with them in Temecula until I get on my feet if I move there. What would happen if I just got on an airplane with our daughter and filed for sole custody in California? Thank you for your time, S.F. from Houston Dear S.F.: Thank you for your question. Since you already have a divorce pending in the state of Texas, that state has jurisdiction (the power to make orders in your case). If you were to file a new request for custody in California, the California court would have to deny your request because previous custody orders were by the state of Texas. Once a court makes an order for custody, any desired changes to that custody order must be made by the same court (i.e. the Texas court). California does not have the power to change another state's order. Furthermore, since your daughter has lived in the state of Texas for the last six months, your daughter is a resident of the state of Texas. Even if you were to move to California and even if the court had the power to modify a Texas order, the request for a custody order would still have to be denied because your daughter is not a resident of this state. California only has the power to make custody orders concerning children who have lived in this state for at least six months before the filing of your request. Otherwise, custody must be decided by the last state where the child lived contiuously for six months. The only exception to this rule is for babies under the age of six months. The state with jurisdiction is the state where the child was born. I am sorry, but if you do not like the current custody and visitation order, you must file your request to modify the order in the state where the original order was made- the state of Texas.