Child Custody Issues Across State Borders, with Brian Walters | Episode 6

Eric Wolff and his wife Melanie live in Houston but have a home in Aspen they frequent in the winter and summers. Melanie comes to Aspen with the kids, stays there and files for divorce while Eric is still in Houston. How is a custody agreement arranged? 

In Episode 6 of Divorce at Altitude, Brian Walters of Walters Gilbreath, PLLC in Texas joins Ryan Kalamaya to discuss issues that arise with child custody across state borders.

In This Episode

-       What is the UCCJEA

-       Rules for determining what state the case will take place in

-       What happens when a custody arrangement is made in a different state

-       How is a custody plan enforced across state borders

Make sure to follow us to continue the conversation on Facebook, LinkedIn, and Twitter. 

About Brian Walters, Partner, Walters Gilbreth, PLLC

Brian Walters was born in Florida as the son of a Colonel in the U.S Marine Corps. After living all over the world and graduating from high school in West Germany, Brian graduated from Texas A&M University in 1993 with a BBA. He attended The University of Texas Law School and graduated in 1996. He has been Board Certified in Family Law by the Texas Board of Legal Specialization since 2003. His first job as an attorney was at a big firm in Austin, and eventually realized that he wanted to start his own firm. Today, Walters Gilbreath, PLLC is a top-rated Texas firm that is leading the way in family law. Walters Gilbreath, PLLC has a state-wide presence with offices in Austin, Houston, and Dallas, and represents clients in cases involving a broad range of family law issues. Brian and his partner attorney Jake Gilbreath also host the Texas Family Law Podcast.

What is Divorce at Altitude? 

What is Divorce at Altitude?

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Transcript

Ryan Kalamaya:
Hey everyone, I'm Ryan Kalamaya.

Amy Goscha:
And I'm Amy Goscha.

Ryan Kalamaya:
Welcome to the Divorce at Altitude, a podcast on Colorado family law.

Amy Goscha:
Divorce is not easy. It really sucks. Trust me, I know. Besides being an experienced divorce attorney, I'm also a divorce client.

Ryan Kalamaya:
Whether you are someone considering divorce or a fellow family law attorney listen in for weekly tips and insight into topics related to divorce, co-parenting and separation in Colorado.

Ryan Kalamaya:
Welcome back to another episode of Divorce at Altitude. I'm Ryan Kalamaya, one of your co-hosts. We have a couple of announcements that we're excited to make. The first is that we, in addition to our Thursday discussions that range between 30 and 45 minutes, and between Amy and me, or with guests, we're also going to be releasing on Mondays little how-to episodes that are going to range from one to three minutes and they're going to focus on specific issues and explain them related to a Colorado divorce.

Ryan Kalamaya:
For example, the first episode's going to be how to actually file for divorce, the documents involved. Then we move on to the automatic injunction and explain what that is. Discovery; so the difference between an interrogatory and a request for production. Expert witnesses, temporary orders, we're going to get into all of that. It's intended as educational purposes, not legal advice, but we hope that it is accessible and helpful for those that may have questions about a Colorado divorce.

Ryan Kalamaya:
The second change is this week is going to be a discussion just between me and another lawyer, a Texas family law attorney in Houston, Brian Walters. It's in connection with the Uniform Child Custody Jurisdiction and Enforcement Act. You'll hear Brian and me refer to that as the UCCJEA, which is the acronym. I want to give a disclaimer here. The UCCJEA is really complex and there is another issue in terms of international parenting or jurisdiction issues regarding custody. We're just scratching the surface, but we hope it's helpful.

Ryan Kalamaya:
Without further ado, Brian, why don't you introduce yourself and to our listeners at Divorce at Altitude.

Brian Walters:
Yeah. I'm Brian Walters. I'm an attorney here in Texas. I also have a podcast called Texas Family Law Podcast. I'm one of the partners in Walters Gilbreath, which is a firm with offices in Houston, Dallas, and Austin, one of the largest family law firms in the state here to talk about the UCCJEA with you.

Ryan Kalamaya:
Yeah. What we thought was sometimes you and I will interact not specifically on any cases in the past, but oftentimes cases will come up where two attorneys from different states will work together. I thought for listeners of Divorce at Altitude to know, we have a hypothetical divorce client, Eric Wolf and Melanie.

Ryan Kalamaya:
In order to provide some context, one situation that is not uncommon might be Eric Wolf and Melanie live in Houston, Texas, and Eric is an oil executive or executive for an energy company and they frequently go back and forth between Aspen and Houston. They had a house in Aspen. And Melanie and Eric decide that they want to get a separation. So Melanie comes to Aspen with the kids, stays there and 30 days later decides that she wants to file for divorce.

Ryan Kalamaya:
Brian, have you ever had a case similar to that? If Eric came into your office in Houston, Texas, and he's been served papers with a Colorado divorce, what are the things that you're going to talk with Eric Wolf about in that context?

Brian Walters:
Yeah, good question. A divorce is three things, which is a change in status if you're no longer divorced, and there's the property division or alimony type issues, and then there's kids, if you've got them. The UCCJEA of course deals with children. There is a rule, there is a law that UCCJEA, Uniform Child Custody Jurisdiction Enforcement Act, which addresses this because it is a common problem, and I think probably even more so these days.

Brian Walters:
It's the idea is that all 50 states, although one of them didn't pass it, would have the same rules for determining where the case would be and what court would have jurisdiction or control over the children in the case. Fortunately, Texas and Colorado are two of the states, and everybody but Massachusetts is the state that has those same rules, that doesn't determine who's going to get custody or what child support is going to be, but it determines what court is going to make those decisions.

Brian Walters:
There can be big differences between different states on how they deal with those things. So that'd be where I'd start my conversation about, "Well, here's what Texas would do. Now let's think about what Colorado would do." And I would probably tell them to call an attorney like yourself because I'm not a Colorado attorney and I couldn't tell them.

Ryan Kalamaya:
Right. If Eric were to give me a call, at least here in Colorado, the first step in analysis is deciding at least if the divorce is going to happen here in Colorado. We have had those occasions where there's kind of a jurisdictional battle. I'm sure, Brian, you've gotten called where people are trying to figure out the forum. That's one of the issues that is domiciled for at least 90 days in order for the court to have subject matter jurisdiction over the divorce. But the UCCJEA is going to be a little bit different because it's not necessarily subject matter dependent; it's about figuring out what the best forum to decide the child related issues. So it's delineating between the divorce and the parenting issues.

Ryan Kalamaya:
Why don't you give us an idea of why is there even this thing called the UCCJEA?

Brian Walters:
This is a more common problem, which is that parents might not live together as a nuclear family with the kids in one place. I'm a military brat, so I'm used to moving around as a kid. Or there might be a situation where the parents just moved to a new state and they suddenly break up. But there were these disputes increasingly as our society became more mobile. We see it now today, where there would be a battle between Colorado versus Texas. In this case, dad would want Texas to make the decision about the kids and mom would probably want Colorado to do so and there wasn't a mechanism to determine where those decisions should be made. We now have that, which is what the UCCJEA is solving is a bunch of rules to determine once and for all where this case is going to be handled as far as the kids go.

Ryan Kalamaya:
Right. At least from my perspective in Colorado, there is two primary issues that are related to this particular issue. The first is that original determination of jurisdiction, and then the second is the enforcement. We're going to cover both of those. It's not to have the forum shopping, it's not to ameliorate the issues on the Texas court says, "Eric gets Monday, Wednesday, Friday," and then Colorado says, "Well Melanie gets Monday, Wednesday, Friday," and to have one place deal with it.

Ryan Kalamaya:
For people that don't know, what goes into the initial determination of parenting issue under the UCCJEA?

Brian Walters:
Right. The key factor is where had the kids been living, especially over the past six months. There's some quirks about it, but that's the general rule is if the kids have been six months or more in Colorado or Texas or wherever the case is, that's usually for an original case for the first time you ever go to court about these children, that's where the case is going to be. For 98% or 99% of all people who have child custody disputes, that's not a real question. They've been in Texas, or maybe they moved, or maybe they're separated, but they've been separated for a long period of time. There are certain cases where that does come up and there's a mechanism to resolve that.

Ryan Kalamaya:
Right. So in our hypothetical where Melanie moves from Houston to Colorado for 30 days, first of all, the Colorado court would likely say, "There's no divorce here. There hasn't been domiciliary." Domiciliary, is one of those antiquated legal issues where that's where you call home. Frequently it's kind of a challenge, especially with people like Eric and Melanie, where they might have multiple homes, but it's what do you really call home? "You're a Texan. I'm a diehard Coloradan. That's where we call home, and we might have vacation homes or other places," ... and Eric and Melanie.

Ryan Kalamaya:
First of all, the divorce is not going to happen in Colorado. But then in that circumstance, the court might say in Colorado, "Well, they've been here for maybe not six months," and I might call up someone like you and say, "Hey, where is the home stay in that circumstance?" And we can work together to do what between the courts.

Brian Walters:
Right. Two good honest lawyers should be able to figure that out and save the clients having to have a real knockdown drag out about that, but things can be ambiguous. Usually in that situation, we'd look at it and say, "Well, this case, as far as the kids go belongs in Texas, and let's not waste anybody's time and money trying to pretend like it belongs in Colorado under those circumstances." I think there can be a lot of gray areas. And Aspen's actually a good example because I'm sure Aspen is full of Texans, especially in the summer. Houston is not the first choice of many people to be in the summer, myself included.

Brian Walters:
Maybe for example, if we take that scenario and mom went up there with the kids for the summer, you went up there in late May and usually came back at the end of August. Well maybe because of COVID, there was not a need to come back to Texas for schools, or maybe she just said, "Let's try a semester up here with the kids and see how it goes." And then we might be arguing about whether that three months in the summer was a change in domicile or whether that was just the visit that they spend every summer in Aspen. It can be a little more complicated than it looks, but it's usually for most cases, it should be pretty clear to figure that out.

Ryan Kalamaya:
Right. It's that initial determination where you and I can work together between the Texas and Colorado courts, and they can have a conference call where the judge from one state to the other will call and say, "Hey, do you want this case?" Do you want to walk us through what that would look like if there was a dispute on where exactly the home state was?

Brian Walters:
Yes. I've been involved in a bunch of those. In that case, both sides are going to file sworn statements that are going to say, "Here's where the kids were during these times." Again, it's usually pretty clear, but sometimes it isn't. And then the judges will take those statements and with the lawyer's present, we'll call the other judge and basically talk it through.

Brian Walters:
It's interesting. In all those cases, I've never seen the judges disagree about the outcome. There is a mechanism if there is a disagreement that one of the judges gets to figure that out. Basically the first filed one gets to figure out where the case is going to be. But they've always come to an agreement ultimately on it and that's good. That's a good sign. I'm glad we haven't had conflicts between different jurisdictions.

Ryan Kalamaya:
Yeah. There's certainly as a strong connection between California and Colorado. We've dealt with a number of cases with Texas, as you said. In particular over the last year with the impact of COVID, there have been a lot of people that have relocated from Texas to the Aspen area. At least in my experience, the judges, they don't often have the attorneys on the call. It has to be recorded.

Ryan Kalamaya:
The reason that we can talk about these things, Brian, you would agree, is the UCCJEA it's going to be the same in Texas as it is in Colorado. As you know, it's the same everywhere except for Massachusetts and Puerto Rico, even in Guam and the US Virgin Islands. We can talk about these things, whereas custody, we're not talking about the same thing. Your judge in Houston, or your judges in Houston are going to look at custody determination differently than a judge in Colorado, but it's the analysis to even get what court is going to decide, that's going to be the same.

Brian Walters:
Correct. I have had cases where we could have fought this out about jurisdiction and we talk to the other state and in Colorado, California, those were probably our two common states for this and we determined that the outcome was going to be the same in either place, have that battle. But you're right, it is important to figure out where that's going to take place if there is going to be a conflict.

Ryan Kalamaya:
Once that determination is made, then that one court, whether it be or Colorado or California or Texas, then that judge is going to make the decision, and then that court is the home state or that place is the home state. So for the situation where let's say two years goes by, and the Texas court has made a determination that that's the custody arrangement in Texas, and then Melanie at that point decides to move to Aspen. What changed or what are you going to tell Eric in terms of, "Hey, you might need to do something in Colorado and hire a Colorado lawyer?" How does that work?

Brian Walters:
Right. Once the initial determination is made, the first time there was a final order for a child, that's usually a divorce, but it could be just a regular custody case. Once that happens, then there's a separate set of rules to determine if the case is reopened in the future, what we call a modification, if that happens. I guess I characterize the law as saying it's kind of sticky. In other words, once there's a Texas order, for example, they like to keep it in Texas. There are ways to move it. In this case, the easiest one is if nobody lives in Texas anymore. If everybody's moved to Colorado for whatever reason, then if there's ever a modification it's for sure going to be in Colorado.

Brian Walters:
The alternative is let's say that the case was in Texas, Melanie got custody and Melanie got the right to move to wherever she wanted to let's say after a year or two, and she did; she moved to Aspen. After the kids had been there again for six months, she could file and she would have to file in Texas to do this if the husband stayed in Texas, let's assume that, but she could ask the court in Texas, "Hey, can you release this case to Colorado?" The reason being, "Hey, we're there, the kids' schools are there, the kids' friends are there, the doctors are there." This is a child custody case. Yeah, dad's still in Houston, but this is about the kids, and the most convenient place to get that information about the kids is in Colorado.

Brian Walters:
There's not a set rule like, "Hey, the kids if they've been two years in Colorado, we have to send the case to Colorado". There's a series of factors. It's a lot of common sense. That's the basic structure of how a court would deal with a modification like that.

Ryan Kalamaya:
Right. So then you would have the modification, which is different than enforcement. We'll get to enforcement next. I always counsel my clients that it really depends in terms of how long you've been there and the connection that you have. If there's been a relocation and six months goes by, especially if it's litigated and there's an evaluation that has been done in the original home state, that judge is going to have some institutional knowledge and is probably going to be pretty reluctant. But if five years goes by and the parents have settled their disputes and there's really no institutional knowledge by that judge or the judge has retired or some other circumstances, I think you're absolutely right, the judges are going to take into consideration how long they've been in school and where the evidence is going to come from if there is a modification.

Ryan Kalamaya:
Going back to the enforcement, I had a client that relocated to Austin, Texas. You can have the Colorado agreement or the order on custody registered for enforcement in Austin. Why would that be important, Brian? What are the circumstances that becomes an issue in that enforcement mechanism? And we'll talk about the differences between the modification. In the first place, why would we care?

Brian Walters:
For enforcements in Texas and I assume in Colorado as well, there are very serious penalties, including going to jail if you are found to have violated a court order, including a possession, like not returning the kids. We have to have these very high standards of proof and care before we throw someone in jail, obviously. So the court's going to want to see a registration, which is a formal filing of the official court order, and that brings the case to that area. And then from there, you can file this enforcement to punish somebody for violating a court order if that's what's called for.

Ryan Kalamaya:
Right. An example is my client in Austin, I would call you and your firm up and then you would just simply register the Colorado agreement, the parenting plan, and if there was a dispute on a weekend or some sort of circumstance of my client in Austin, then they can enforce it, whether it's call the police, which is a different legal mechanism. Then they at least have a Texas order saying you have to comply with the Colorado order and if you don't, then you could go to jail.

Brian Walters:
That is correct. That's something that's required. One of the things you might want to point out is that this does not necessarily involve child support. That is a different rule. People get confused in this conversation about, "Hey, I want to raise dad's child support. How do I do that?" It's a different set of rules.

Ryan Kalamaya:
Totally. And then the kidnapping, there's also a whole other law.

Ryan Kalamaya:
The history of how we got here originated out of these concerns and they've gone off onto different branches, but specifically with the UCCJEA that is something where attorneys from Texas and Colorado are frequently working together to help make sure that one court understands what is all going on with the parenting.

Ryan Kalamaya:
Well thanks, Brian. Appreciate the time. Nice to meet you.

Brian Walters:
Okay. Thank you very much. Have a good day.

Ryan Kalamaya:
Yup. See you Brian.

Ryan Kalamaya:
Hey everyone, this is Ryan again. Thank you for joining us on Divorce at Altitude. If you found our tips, insight or discussion helpful, please tell a friend about this podcast. For show notes, additional resources or links mentioned on today's episode visit divorce@altitude.com. Follow us on Apple Podcasts, Spotify, or wherever you listen in. Many of our episodes are also posted on YouTube. You can also find Amy and me at kalamaya.law or (970) 315-2365. That's K-A-L-A-M-A-Y-A.law.