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Click here for the full text of this decision FACTS:Brenda Lee Lewin and Robert George Farnsworth had a child together in New Jersey in 1998, and moved in Milam County, Texas, in 2000. Their relationship ended in 2002, and Lewin moved with the child into her parents’ house in Wayne, New Jersey. Instead of returning the child to Lewin after a breakfast outing, Farnsworth took the child back to Texas and immediately filed a suit affecting the parent-child relationship. On Nov. 5, the Milam County court granted Lewin and Farnsworth joint managing conservatorship. The order gave Farnsworth the right to determine the child’s primary residence until Lewin got a place of her own and did not move back in with her parents. The order also set out a visitation schedule through August 2003, which Farnsworth and Lewin followed until July. In July, Farnsworth took the child to Montreal, Quebec, to move in with his mother. Farnsworth sent handwritten letters to Milam County and Lewin listing his change of address. In return, Lewin sent letters to Milam County and Farnsworth saying she had moved out of her parents house, as required by the Nov. 5 SAPCR. On Aug. 26, 2003, Farnsworth filed suit in Canada to modify custody. In his petition, which alleged that Lewin no longer wanted the child and that there were signs the child had been abused under Lewin’s care, Farnsworth stated that he was “residing and domiciled” in Quebec. Farnsworth’s lawyer also sent a letter to Milam County at this time informing that court of the Quebec proceeding. The letter also stated that Farnsworth’s residence was in Quebec. When Farnsworth did not return the child to Lewin in accordance with the SAPCR visitation order, Lewin filed an application in the Canadian court under the Hague Convention on the Civil Aspects of International Child Abduction to have the child returned to her. The Canadian court ruled for Lewin, finding no evidence of abuse, and ordered the child returned to Lewin by noon on Nov. 26, 2003. Farnsworth did not return the child as ordered, but instead fled. Though a warrant was issued for his arrest in Canada, Farnsworth had crossed the border back into the United States before it could be enforced. On Dec. 3, 2003, Farnsworth showed up in Milam County and filed a motion to modify child custody, again alleging physical and sexual abuse and neglect. An hour later, in a temporary ex parte order, the trial court in Milam County granted the requested relief. That afternoon, Lewin filed a motion to vacate the order, citing the Canadian order on her Hague Convention application. On Dec. 4, she filed suit in New Jersey to enforce the Hague Convention order. The New Jersey court denied the relief, concluding that jurisdiction lay in Milam County. Back in Milam County, the trial court held a hearing on the motion to vacate. Farnsworth represented himself as being a resident of Texas. The trial court entered another temporary order granting Farnsworth his requested relief. Lewin filed for a writ of mandamus with this court. She asks that the temporary order be vacated because the Milam County court lacked subject matter jurisdiction. HOLDING:Writ conditionally granted. The court describes the case as being one interpreting the interplay between the Hague Convention and the Uniform Child Custody Jurisdiction and Enforcement Act, adopted by Texas. The overarching purposes of both enactments are to prevent conflicting jurisdiction and relitigation of child custody issues and to deter child abduction. The court first examines whether the Milam County court had jurisdiction to enter temporary orders modifying the SAPCR without first immediately enforcing the Canadian order under the Hague Convention. The court points out that the Hague convention is not just a device to enforce custody determinations; it is a set of rules allowing courts from different countries to work together to avoid “forum shopping and self help,” regardless of the ultimate resolution of the underlying custody dispute. Under the Hague Convention, a child abductor is deterred by eliminating the opportunity to gain an advantage in the child custody proceeding by initiating it in another country. When Farnsworth unlawfully avoided the Hague Convention order in Canada and fled to Milam County, he did precisely what the Hague Convention and the UCCJEA seek to prevent. After declaring himself a resident of Quebec, Farnsworth had a valid custody suit pending in Canada seeking to modify the original SAPCR order. Under the Hague Convention, he was also permitted to litigate his concerns over the safety of his daughter’s return to New Jersey to live with her mother. After a hearing, the Canadian court determined that there was no grave risk of harm to the child and ordered her return to Lewin. “Dissatisfied with the Canadian court’s decision, Farnsworth disobeyed the order, fled with the child across an international boundary where the warrant for his arrest could not be enforced, withdrew his custody proceeding, and sought to relitigate the same issues in Milam County. Both the language and the very purpose of the Hague Convention and [the UCCJEA] prohibit this sort of forum shopping and self help.” Once the Milam trial court was presented with a valid order under the Hague convention, the court continues, the trial court was obligated to enforce it. Additionally, Family Code �152.302 provides that a court may enforce an order for the return of a child made under the Hague Convention as if it were a child custody determination. Because the trial court did not first return the child to Lewin, its entry of the temporary orders violated both �152.302 and the Hague Convention and was an abuse of discretion. The court then considers whether the temporary orders are void because of the lack of subject matter jurisdiction. The court discusses whether the Milam County court had exclusive continuing jurisdiction or whether it regained its initial jurisdiction. The court concludes that neither event occurred. Though the trial court was correct in finding that the parties’ move from the state in 2002 did not deprive the court of its exclusive continuing jurisdiction, the trial court erred when it concluded that it still had exclusive continuing jurisdiction after the Canadian court determined in November 2003 that Farnsworth, Lewin and the child did not presently reside in Texas, a jurisdictional requirement of Family Code �152.202(a)(2). The court adds that under the UCCJEA, the phrase “do not presently reside” is not used in the sense of a technical domicile; even if the court considers one parent to still be a domiciliary of its state, does not prevent a court from losing exclusive continuing jurisdiction after the parents and child move from the state. Here, the Canadian court correctly determined that both parents had moved from Texas. The court notes that Farnsworth’s own actions undermine his argument on appeal, since he sent out letters after moving to Quebec stating that he was now a resident of Quebec. He may not now return to Texas and challenge the Canadian court’s findings that were based on his own assertions. Furthermore, in holding that the trial court lost exclusive continuing jurisdiction over the SAPCR, the court notes that the original SAPCR order even recognized that Lewin and the child lived in New Jersey. Once it lost exclusive continuing jurisdiction, the court also finds that the trial court did not regain that jurisdiction through the establishment of Texas as the child’s “home state.” Under the UCCJEA, a child’s home state is the “state in which the child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.” The court finds that when the New Jersey court denied Lewin’s motion to enforce the Hague Convention order in December 2003, it incorrectly found Texas to be the child’s home state. The child’s primary residence was New Jersey. The child had been with Lewin in New Jersey for almost a year, and the child’s visits to Texas and Canada, some of which were while she was being wrongfully retained by Farnsworth, were temporary absences. As New Jersey was the home state, Milam County did not regain its initial jurisdiction. The court also addresses Farnsworth’s unjustifiable conduct, which also deprived the trial court of jurisdiction. After recounting Farnsworth’s actions of taking the child from place to place and filing various motions to modify custody, the court states that “[to] allow a parent to deliberately secrete a child to Texas for the purpose of obtaining a child custody determination in the state would make a mockery of the [Texas version of the UCCJEA] statute.” Even if there were an independent basis for the trial court’s jurisdiction over Farnsworth’s modification suit, the trial court was required to decline its jurisdiction based on Farnsworth’s wrongful retention and later abduction of the child in search of a more favorable forum. “The trial court made an admirable attempt to navigate the complexities of jurisdiction presented by the circumstances of this custody dispute. We write to give guidance to trial courts who will more often be faced with such unfamiliar problems as the interplay between a Hague Convention order and the Texas Family Code, including the UCCJEA.” OPINION:Smith, J.; Kidd, Smith and Pemberton, JJ.

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