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Click here for the full text of this decision FACTS:This is an initial child-custody case in which both Texas and Tennessee claim jurisdiction. In February 2001, Russell Powell moved from Texas to Tennessee to accept a new position with his employer. In May 2001, his wife, Sonia Powell, moved with the couple’s son, D.B.P., to Tennessee to join Russell. On April 24, 2002, Sonia moved back to Texas and took D.B.P. with her. At the time, she was seven months pregnant with D.T.P., who was born in Texas. On May 6, 2002, Sonia filed for divorce in Hardin County, requesting managing conservatorship of D.B.P. The trial court issued temporary orders appointing Sonia temporary managing conservator of D.B.P. Russell filed for divorce in Tennessee two weeks after Sonia filed in Texas. The Tennessee court issued a temporary parenting plan on May 21, 2002, awarding custody of D.B.P. to Russell. The court also found that Tennessee “has jurisdiction over [D.B.P.] as the parties did not separate until April 22, 2002.” Russell filed in the Texas proceeding a plea in abatement and a motion to dismiss for lack of jurisdiction. The trial court denied Russell’s plea in abatement, stating in a letter to counsel: “This case involves a very close question of fact. The fact that both children were born in Texas and that the home state of the youngest child is clearly Texas are persuasive. The Motion for Abatement is denied.” The court also entered an order denying the motion to dismiss for lack of jurisdiction without explanation. Russell sought mandamus relief, asking the court of appeals to vacate the trial court’s order and to transfer the case to the Chancery Court of Hawkins County, Tennessee. A divided court of appeals denied mandamus relief, holding that the trial court did not abuse its discretion in retaining jurisdiction because Texas was clearly D.T.P.’s home state, and there was “a fact issue on whether [Sonia's] time spent in Tennessee was a temporary absence” and thus whether Texas or Tennessee was D.B.P.’s home state. Russell petitioned this court, claiming the trial court lacked subject-matter jurisdiction over this custody dispute because, among other things, Texas is not D.B.P.’s home state. Russell does not challenge the trial court’s jurisdiction over the dispute as to D.T.P., who has never lived anywhere but Texas. HOLDING:The court conditionally grants Russell’s petition for writ of mandamus and orders the trial court to stay this proceeding and communicate with the Tennessee court. Because this case involves an initial child-custody determination, and home-state jurisdiction has priority, the question presented is whether, on the date the proceeding was commenced, Texas or Tennessee was D.B.P.’s home state. The purposes behind the Uniform Child Custody Jurisdiction and Enforcement Act suggests that a child’s physical location is the central factor to be considered when determining a child’s home state. The UCCJEA was intended to make the determination of jurisdiction more straightforward. The court holds that, in determining where a child lived for purposes of establishing home-state jurisdiction, the trial court must consider the child’s physical presence in a state. To the extent that In re Estes, 153 S.W.3d 591 (Tex. App. Amarillo 2004, no pet.), conflicts with the holding here, the court disapproves the decision. D.B.P.’s physical presence in Tennessee with his parents more than 10 months immediately before the commencement of this custody proceeding conclusively establishes that he “lived” in Tennessee and that Tennessee is D.B.P.’s home state under Texas’s version of the UCCJEA. The question of whether Texas is a more appropriate forum than Tennessee is not for the Texas court to decide; it is a determination that must be made by a court in D.B.P.’s home state, which in this case is Tennessee. OPINION:O’Neill, J., delivered the court’s opinion.

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