In re Dean
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After Mother became pregnant with Father's child, Mother moved from Texas to New Mexico, where she lived with Child since his birth. Father filed for divorce and subsequently filed a petition requesting shared custody and seeking Mother's compelled return to Texas with Child. Mother petitioned a New Mexico court to adjudicate custody, asserting that court had jurisdiction because New Mexico was Child's home state. The New Mexico court dismissed Mother's case, concluding that Texas had jurisdiction over the proceedings because Father filed his divorce petition in Texas first. After unsuccessfully seeking mandamus relief from the court of appeals in the Texas case, Mother petitioned the Supreme Court for a writ of mandamus. The Court conditionally granted relief, holding that because New Mexico, not Texas, was child's home state under the Uniform Child Custody Jurisdiction and Enforcement Act, and because there were no other exclusive, continuing jurisdictional bases under the Act, the Texas court improperly assumed jurisdiction.
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IN THE SUPREME COURT OF TEXAS 444444444444 NO. 11-0891 444444444444 IN RE CARRIE DEAN, RELATOR 4444444444444444444444444444444444444444444444444444 ON PETITION FOR WRIT OF MANDAM US 4444444444444444444444444444444444444444444444444444 CHIEF JUSTICE JEFFERSON delivered the opinion of the Court. JUSTICE LEHRM ANN delivered a concurring opinion. JUSTICE GREEN did not participate in the decision. Motivated in part to prioritize home state jurisdiction in child custody proceedings, Texas adopted the Uniform Child Custody Jurisdiction and Enforcement Act. See Powell v. Stover, 165 S.W.3d 322 (Tex. 2005). Forty-eight other states, the District of Columbia, Guam, and the United States Virgin Islands have done the same.1 The Act encourages national uniformity in child custody disputes and addresses the increasing mobility of American families. See Powell, 165 S.W.3d at 326. Previously, state courts modified custody determinations each time a child moved from one state to another, and those orders 1 M as s achus etts and Puerto Rico recently introduced the UCCJEA to their legis latures for propos ed adoption. C h i l d C u sto d y J u r i s d i c t i o n a n d E n fo r c e m e n t A c t , U N I F O R M LA W C O M M I S S I O N , http://www.uniformlaws .org/A ct.as px?title=Child%20Cus tody%20Juris diction%20and%20Enforcement%20A c t (all Internet material as vis ited Dec. 19, 2012, and copy available in Clerk of Court s cas e file). See al so 39 GUAM CODE § 39101 et s eq. often conflicted. To minimize these conflicts, the Act provides guidance on how to determine which state has jurisdiction over all subsequent child custody proceedings.2 The Act makes the child s home state the primary factor in this equation. See UNIF. C H ILD C U STODY JUR. & ENF. ACT Prefatory Note, 9 U.L.A. 650 51 (1997) (stating that the Act sought to eliminate the inconsistent state interpretations and prioritize[] home state jurisdiction in [s]ection 201 when child custody determinations are involved). It establish[es] clear bases for a court to tak[e] jurisdiction and . . . discourage[s] competing child custody orders among different states.3 We consider today whether a Texas court has jurisdiction over a custody determination involving a child who was born in New Mexico and has lived there all his life. Because New Mexico, not Texas, is the child s home state, and because we find no other exclusive, continuing jurisdiction[al] bases under the Act, see TEX. FAM . CODE § 152.202, the Texas court improperly assumed jurisdiction. We also think the New Mexico trial court erroneously ceded jurisdiction to Texas. Until the New Mexico appellate court addresses that matter, and because jurisdiction must reside somewhere in the interim, we lift our stay and order the Texas trial court to confer immediately with the New Mexico Court of Appeals, where the case is currently pending. See TEX. 2 The A ct dis tinguis hes between child cus tody determinations and proceeding s . A child cus tody determination means a judgment, decree, or other order of a court providing for the legal cus tody, phys ical cus tody, or vis itation with res pect to a child. The term includes a permanent, temporary, initial, and modification order. UNIF . CHILD CUST ODY JUR . & ENF . A CT § 102(3), 9 U.L.A . 658 (1997). A child cus tody proceeding means a proceeding in which legal cus tody, phys ical cus tody, or vis itation with res pect to a child is an is s ue . . . [and] includes a proceeding for divorce, s eparation, neglect, abus e, dependency, guardians hip, paternity, termination of parental rights , and protection from domes tic violence, in which the is s ue may appear. Id. § 102(4). Therefore, Richard s original petition for divorce may als o be characterized as a child cus tody proceeding under the UCCJEA . 3 Child Custody Jur i s d i c t i o n and Enforcement Act Summary, UNIFORM LAW http://www.uniformlaws .org/A ctSummary.as px?title=Child Cus tody Juris diction and Enforcement A ct. 2 COMMISSION , FAM . CODE § 152.201(a) (explaining home state jurisdiction ); see also id. § 152.110(b) ( A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter. ). Accordingly, we conditionally grant relief. *** Richard Hompesch, III, and Carrie Dean were married in September 2010, and lived together in Irving. The couple separated nineteen days after their wedding. Two months later Carrie, who was pregnant with Richard s child, moved to New Mexico without notifying Richard. In February 2011, Richard filed for divorce in Dallas County and sought orders concerning the upcoming birth of their child. Carrie was personally served with process in Albuquerque, New Mexico. She gave birth to a son, J.S.D., in New Mexico, and subsequently answered the Texas case. J.S.D. has resided in New Mexico with Carrie continuously since his birth. After learning of J.S.D. s birth, Richard amended his petition to request shared custody and sought Carrie s compelled return to Dallas with J.S.D. Carrie then petitioned a New Mexico court to adjudicate custody pursuant to the New Mexico Child Custody Jurisdiction and Enforcement Act.4 Carrie alleged that the New Mexico court, and not Texas, had jurisdiction because New Mexico was J.S.D. s home state. See N.M. STAT . § 4010A-201(a) (setting forth substantively identical bases for home state jurisdiction to those found in Texas Family Code section 152.201(a)). She simultaneously sought dismissal of the Texas proceeding. 4 New M exico adopted the UCCJEA in 2001, and its provis ions relevant to this cas e are s ubs tantially the s ame as thos e of the Texas A ct. See Child Custody Jurisdiction and Enforcement Act: UCCJEA Adoptions, UNIFORM LAW COMMISSION , http://uniformlaws .org/Shared/docs /UCCJEA adoptions .pdf; see also N.M . ST AT . § 40-10A -101 et s eq. 3 The Texas and New Mexico trial courts, along with both parties counsel, conferred in late August 2011.5 See N.M. STAT . § 40-10A-110(a) (providing that [a] court of this state may communicate with a court in another state concerning a proceeding arising under the Uniform Child-Custody Jurisdiction and Enforcement Act ); TEX. FAM . CODE § 152.110(b) (same). The New Mexico trial judge concluded that New Mexico was J.S.D. s home state because he was born there. J.S.D. had never lived anywhere else. Even though the New Mexico court did not find that New Mexico was an inconvenient forum, or that the parties had engaged in unjustifiable conduct the two bases on which a home state may decline jurisdiction6 the New Mexico court deferred to the Texas court to make the first call. The Texas associate judge concluded that Texas had jurisdiction over the proceedings because Richard filed his divorce petition in Texas first. Based on that decision, and even though it thought that New Mexico does have jurisdiction . . . [and is J.S.D. s] home state, the New Mexico court dismissed Carrie s pending custody suit without prejudice. It noted that Carrie s custody suit could be refiled if in fact somewhere along the line it s discovered that Texas doesn t have jurisdiction. When the New Mexico trial court dismissed the case, the Texas district court adopted the associate judge s recommendations, which appointed Richard and Carrie as J.S.D. s Temporary Joint 5 Purs uant to s ections 201.005(a) and 201.007(a) of the Texas Family Code, the Texas dis trict court as s ociate judge conducted the conference with the New M exico trial court. See T EX. FAM . CODE §§ 201.005(a), .007(a) (providing that a dis trict judge may refer to an as s ociate judge any as pect of a s uit over which the court has juris diction under this title and enumerating an as s ociate judge s powers ). 6 UNIF . CHILD CUST ODY JUR . & ENF . A CT §§ 201(a), 207, 208, 9 U.L.A . 671, 682 84 (1997) (emphas es added); see also N.M . ST AT . §§ 40-10A -201(a), -207, -208; T EX. FAM . CODE §§ 152.201(a), .207, .208. 4 Managing Conservators, granted Carrie the right to establish J.S.D. s residence in either Dallas or Albuquerque during pending appeals, and set forth guidelines for both parents access to J.S.D. Carrie appealed the New Mexico trial court s dismissal order to the New Mexico Court of Appeals. Earlier this year, that court issued two proposed summary dispositions7 proposing to hold that New Mexico is J.S.D. s home state with exclusive jurisdiction over custody and visitation.8 Carrie s New Mexico appeal has since moved to the court s general calendar, where it remains pending. See N.M.R.A. Rule 12-210(B), (D) (describing general and summary calendar processes). After unsuccessfully seeking mandamus relief from the court of appeals in the Texas case, ___ S.W.3d ___, Carrie petitioned this Court for a writ of mandamus. She concurrently sought a stay of the Texas trial court s order, which we granted. We must decide whether the Texas court properly assumed jurisdiction over the custody determination. Richard makes a number of arguments based on his desire to be involved with Carrie s prenatal care and J.S.D. s birth. Because Carrie has already given birth to J.S.D., we limit our discussion to proceedings involving his custody. *** 7 W hen a cas e is placed on the s ummary calendar, the appellate court is s ues a propos ed dis pos ition and s tates the bas is for its propos a l. T h e p arties then have twenty days from the date of s ervice of the notice of propos ed dis pos ition to file memoranda as to why the dis p o s it ion s hould or s hould not be made. A fter reviewing any filed memoranda, the appellate court will either reas s ign the cas e to a nons ummary calendar, is s ue another notice of propos ed s ummary dis pos ition or proceed to decide the cas e by opinion or order. N.M .R.A . Rule 12-210(D). 8 See New M exico Court of A ppeals s econd propos ed s ummary dis pos ition holding, in relevant part, that: New M exico is [J.S.D. s ] h o me s t a t e and, as s uch, New M exico has exclus ive and paramount juris diction over the cus tody and vis itation is s ues relating to [J.S.D.]. [T]he dis trict court erred in ceding juris diction to Te xa s and dis mis s ing the cas e. [The court] propos e[s ] to reject [Richard s ] reques t for a s tay pending the Texas Supreme Court decis ion, and . . . again propos e[s ] to revers e the dis trict court and remand for the dis trict court to proceed to exercis e its juris diction and determine the cus tody and vis itation is s ues relating to [J.S.D.]. 5 The Act, as adopted by Texas and New Mexico, states that a court has jurisdiction to make an initial child custody determination only if: (1) this State is the home State of the child on the date of the commencement of the proceeding . . . (2) a court of another State does not have jurisdiction under paragraph (1), or a court of the home State of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under Section 2079 and 208,1 0 and: (A) the child and the child s parents, or the child and at least one parent . . . have a significant connection with this State other than mere physical presence; and (B) substantial evidence is available in this State concerning the child s care, protection, training, and personal relationships; (3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under Section 207 or 208; or (4) no court of any other State would have jurisdiction under the criteria specified in paragraph (1), (2), or (3). UNIF. CHILD CUSTODY JUR. & ENF. ACT § 201(a), 9 U.L.A. 671 (1997) (emphases added); see also N.M. STAT . § 40-10A-201(a); TEX. FAM . CODE § 152.201(a). These four grounds provide the exclusive jurisdictional basis for [a Texas court to] mak[e] a child custody determination. TEX . F A M . CODE § 152.201(b). So, unless a court finds that it has jurisdiction under one of the four enumerated grounds, it cannot exercise jurisdiction over a child 9 UNIF . CHILD CUST ODY JUR . & ENF . A CT § 207, 9 U.L.A . 682 (1997) ( Inconvenient Forum ) (allowing a court of this State with juris diction to make a child-cus tody determination under this A ct to decline to exercis e its juris diction at any time if it determines that it is an inconvenient forum under the circums tances and that a court of another State is a more appropriate forum ). 10 UNIF . CHILD CUST ODY JUR . & ENF . A CT § 208, 9 U.L.A . 683 84 (1997) ( Juris diction Declined by Reas on of Conduct ) (allowing a court to decline juris diction upon a finding that a pers on s eeking to invoke its juris diction has engaged in unjus tifiable conduct in certain s ituations ). 6 custody determination. Furthermore, the drafters made clear that one of the Act s primary purposes was to prioritize the child s home state. See UNIF. CHILD CUSTODY JUR. & ENF. ACT Prefatory Note, 9 U.L.A. 649 51 (1997). Home state means: [T]he State in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the State in which the child lived from birth with any of the persons mentioned. See UNIF. CHILD CUSTODY JUR. & ENF. ACT § 102(7), 9 U.L.A. 658 (1997) (emphasis added); see also N.M. STAT . § 40-10A-102(7); TEX. FAM . CODE § 152.102(7). Section 152.201(a) of the Texas Family Code codified section 201(a) of the Act. The Texas Act also codified the Act s home state definition, which gives concrete guidance for instances in which a party sues for custody of a child when the child at issue is less than six months old. See TEX. FAM . CODE § 152.102(7). Once the home state is correctly identified, jurisdiction in that state s courts is exclusive unless that state properly cedes jurisdiction based on circumstances the statute prescribes.1 1 See TEX. FAM . CODE §§ 152.201(b), .202(a) ( Subsection [152.201](a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state and a court of this state which has made a child custody determination consistent with [s]ection 152.201 . . . has exclusive continuing jurisdiction over the determination. ). Although the home state cannot be determined before a child is born, it was ascertainable when Carrie filed the New Mexico case and when the Texas and New Mexico courts conferred. 11 For example, judicial findings of unjus tifiable conduct by a parent s eeking to affect juris diction under the s tatute according to s ection 208 might res ult in another s tate having juris diction. See UNIF . CHILD CUST ODY JUR . & ENF . A CT § 208, 9 U.L.A . 683 84 (1997). 7 New Mexico is J.S.D. s home state he was born there and has lived there ever since. When the Texas and New Mexico courts discussed the matter, the New Mexico court had not yet declined jurisdiction under the Act, and the Texas court should not have assumed it at that time. Instead, the two courts should have conducted a more complete examination of which state had jurisdiction under the Act to decide custody issues after J.S.D. s birth. Whether the Texas divorce action was filed first is irrelevant in determining jurisdiction over custody matters, as the two proceedings involve different inquiries. See, e.g., Seligman-Hargis v. Hargis, 186 S.W.3d 582 (Tex. App. Dallas 2006, no pet.) (holding that trial court s jurisdiction to hear divorce action did not automatically give it authority to decide child custody issues as well); see also Boots v. Lopez, 6 S.W.3d 292 (Tex. App. Houston [14th Dist.] 1999, pet. denied) (stating that trial court s jurisdiction to resolve certain issues in divorce action may be limited when it lacks jurisdiction under the Uniform Child Custody Jurisdiction Act). Jurisdiction over custody determinations is governed by the Act, regardless of whether there is an ongoing divorce. See, e.g., Arnold v. Price, 365 S.W.3d 455 (Tex. App. Fort Worth 2011, no pet.) (holding that California, not Texas, was home state for child born in California who resided in California from birth until divorce trial, regardless of father s filing for divorce and custody in Texas prior to child s birth); Waltenburg v. Waltenburg, 270 S.W.3d 308 (Tex. App. Dallas 2008, no pet.) (holding that Texas, not Arizona, was child s home state immediately upon birth in Texas when child remained in Texas with mother after birth until filing of petition, regardless of father s filing for divorce in Arizona prior to child s birth). That is not to say the divorce proceedings are irrelevant, as they may influence a home state s decision about its forum s convenience. See, e.g., UNIF. CHILD CUSTODY 8 JUR. & ENF. ACT §§ 201(a), 207, 9 U.L.A. 671, 682 83 (1997) (permitting home state to decline jurisdiction if it is an inconvenient forum). But one state may have jurisdiction over custody even if the divorce is decided by another state s court. See TEX. FAM . CODE § 6.308(a) (stating that a court may exercise jurisdiction over portions of a divorce action for which it has authority, not that it must); see also Boots, 6 S.W.3d at 294 (noting that the language of the statute is discretionary, not mandatory and that it was within the trial court s discretion whether to exercise partial jurisdiction ). *** Richard contends that if section 152.201(a) gives New Mexico exclusive jurisdiction, it is unconstitutional. He argues that section 152.201(a) violates the separation of powers doctrine and the open courts provision of the Texas Constitution, as well as the Texas Equal Rights Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We find these arguments unpersuasive. The separation of powers doctrine prohibits one branch of government from exercising a power belonging inherently to another. See TEX. CONST . art. II, § 1; see also Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 600 (Tex. 2001); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). The doctrine is violated only when the functioning of the judicial process in a field constitutionally committed to the control of the courts is interfered with by the executive or legislative branches. Little-Tex Insulation Co., 39 S.W.3d at 600 (quoting State Bd. of Ins. v . Betts, 308 S.W.2d 846, 851 52 (Tex. 1958)). The Texas Constitution provides that [d]istrict court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions 9 . . . except in cases where exclusive . . . jurisdiction may be conferred by this Constitution or other law on some other court. TEX. CONST . art. V, § 8 (emphasis added). Richard argues that because section 152.201(a) states that a Texas court has jurisdiction only if one of the four statutory scenarios exists, the Legislature has, in essence, prevented the Texas district court from making custody determinations before a child is born. We disagree. By enacting section 152.201(a), the Legislature did not encroach upon the judiciary s power to interpret laws, nor did it decide whether the Texas trial court had jurisdiction. These determinations, still within the province of the courts, are simply subject to a rationally based policy that appreciates the multi-state arena in which custody determinations often occur. Section 152.201(a) does not violate the separation of powers doctrine. Richard also contends that section 152.201(a) violates the open courts provision of the Texas Constitution,1 2 which provides, [a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law. TEX. CONST . art. I, § 13. But the right to a remedy by due course of law does not require that the remedy be available in Texas. To establish an open courts violation, Richard must show that (1) he has a well-recognized common law cause of action that is being restricted and (2) the restriction is unreasonable or 12 Richard alleges that s ection 152.201(a) violates his remedy by [d]ue [c]ours e of [l]aw bas ed on the open courts provis ion under article I, s ection 13 of our Cons titution not s ection 19 which addres s es due cours e of law in the context of deprivatio n o f life , liberty, property, privileges , or immunities . Compare T EX. CONST . art. I, § 13 (open courts ), with § 19 ( life, liberty, property, privileges or immunities ). W hile we have recognized that the open courts provis ion is a due proces s guarantee, see Sax v. Votteler, 648 S.W .2d 661, 664 (Tex. 1983), Richard s arguments here do not rely on s ection 19 due proces s ; our dis cus s ion here addres s es Richard s due cours e of law challenge, s pecifically in the open courts doctrine context. 10 arbitrary when balanced against the statute s basis and purpose. Owens Corning v. Carter, 997 S.W.2d 560, 573 (Tex. 1999). Even assuming that Richard can satisfy the first requirement, he has not established the second. In Sax, we concluded that a statute effectively abolishe[d] a minor s right to bring [her] well-established common law cause of action without providing a reasonable alternative and thus violated article I, section 13 of the Texas Constitution. Sax v. Votteler, 648 S.W.2d 661, 667 (Tex. 1983) (emphasis added). A statute that otherwise withdraws such common law remedies will be sustained only when it is reasonable in substituting other remedies . . . [but will] not [be] sustained when it is arbitrary or unreasonable. Id. at 665 (quoting Lebohm v. City of Galveston, 275 S.W.2d 951, 955 (Tex. 1955)). Here, Richard argues that if New Mexico is J.S.D. s home state, the Act deprives him of a remedy in Texas. While this is true, requiring Richard to pursue his custody claim in New Mexico rather than Texas preserves a reasonable alternative. Richard may pursue his custody claims in New Mexico, and he has neither pleaded nor proved that New Mexico is an inadequate forum. Section 152.201(a) does not violate the open courts provision of the Texas Constitution. Lastly, section 152.201(a) violates neither Richard s equal protection rights under the Texas Equal Rights Amendment nor the Fourteenth Amendment to the United States Constitution. The Texas Equal Rights Amendment provides that [e]quality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. TEX. CONST . art. I, § 3a. Richard asserts that the home state rule violates this provision because a woman controls where she lives prior to giving birth, and that denies the father the right to participate in prenatal decisions. We have 11 already determined that this contention is not before us, as Carrie has already given birth. But Richard also complains that home state jurisdiction unconstitutionally deprives him of immediate post-birth involvement. We have applied a three-step evaluation to determine whether the Amendment has been violated. See Bell v. Low Income Women of Texas, 95 S.W.3d 253, 257 64 (Tex. 2002). First, we consider whether equality under the law has been denied. Id. at 257. If it has, we must determine whether equality was denied because of a person s membership in a protected class. Id. (emphasis added). If so, the challenged action cannot stand unless it is narrowly tailored to serve a compelling governmental interest. Id. Richard has not shown that he is denied equality under the law. Section 152.201(a) is a procedural mechanism for determining jurisdiction. The statute defines home state to establish where the proceedings should take place, without a bias for either parent. The place of birth is not the relevant consideration. Instead, we look to the State in which the child lived from birth with [a parent or person acting as a parent]. UNIF. CHILD CUSTODY JUR. & ENF. ACT § 102(7), 9 U.L.A. 658 (1997) (emphasis added). Residence is determinative, and it favors neither women nor men. A child could live from birth with his father or his mother, and sections 152.102(7) and 152.201(a) would apply with equal force in either scenario. For the same reasons, we conclude that the statute does not violate Richard s equal protection rights under the Fourteenth Amendment to the United States Constitution.1 3 13 Allowing the New Some commentators s ugges t that the Texas Equal Rights A mendment may afford even broader rights than the federal Fourteenth A mendment. See, e.g., Linda J. W harton, State Equal Rights Amendments Revisited: Evaluating Their Effectiveness in Advancing Protection Against Sex Discrimination, 36 RUT GERS L.J. 1201, 1203 (2005) (noting 12 Mexico court to exercise jurisdiction as provided in each state s adopted UCCJEA does not deny Richard equality under the law.1 4 *** The New Mexico trial court concluded, correctly, that it had jurisdiction over the custody dispute because New Mexico is J.S.D. s home state. Yet the New Mexico trial court deferred to Texas. We do not understand the basis for that deferral. As applied to the facts here, the Act would have allowed Texas to exercise jurisdiction only if New Mexico had declined jurisdiction on the ground that [Texas] . . . is the more appropriate forum . . . under Section 152.207 or 152.208. See TEX. FAM . CODE § 152.201(a)(3). But New Mexico s declination was not based on section 207 (inconvenient forum) or section 208 (jurisdiction declined by reason of conduct). §§ 152.207 .208. See id. In fact, the New Mexico trial judge emphasized that its decision to decline jurisdiction was not based upon any finding of unjustifiable conduct or bad acts by either party. Rather, the New Mexico court dismissed the case solely because Texas has determined it will that many s tate courts are interpreting s tate cons titutions as independent, and often broader, s ources of protection for individual liberties . . . that go[] well beyond the protection afforded under the Federal Cons titution ); see also W illiam W ayne Kilgarlin & Banks Tarver, The Equal Rights Amendment: Governmental Action and Individual Liberty, 68 T EX. L. REV. 1545, 1559, 1570 (1990) (noting, for ins tance, that a wider range of private activities can be attacked under the E[qual] R[ights ] A [mendment] than under the [F]ourteenth [A ]mendment and s tate cons titutional guarantees may confer broader rights ). 14 Ric h a rd s challenge under the federal Cons titution s Equal Protection Claus e als o claims that s ection 152.201(a) violates his fundamental right concerning t h e care, cus tody, and control of [J.S.D.] under Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion). But as ide from his curs ory argument that the UCCJEA deprives him of meaningful participation in the child-cus tody proceedings by unilaterally choos ing [J.S.D. s ] home s tate , Richard cites no authority for his propos ition that a parent s opportunity to choos e a home s tate for cus tody proceedings is a fundamental right. New M exico is s imply the forum in which Richard may litigate for cus tody. 13 exercise jurisdiction. We appreciate that trial court s effort to avoid an interstate conflict, but we do not believe the Act allows deferral on that basis. As it now stands, the New Mexico trial court has jurisdiction, but it has dismissed the case. We anticipate that the New Mexico Court of Appeals, consistent with its reasoning in its proposed summary disposition, will remand the case to the New Mexico trial court, but that has yet to occur. Although the action is pending in the Texas court, we have stayed its proceedings while we decide the merits. During this intolerable interregnum, Carrie, Richard, and J.S.D., seemingly, have nowhere to turn. There is an answer. We noted in Powell1 5 that the Act delineates the proper procedure when custody proceedings have been filed in different states: If the [Texas] court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the [Texas] court . . . shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the [Texas] court . . . is a more appropriate forum, the [Texas] court . . . shall dismiss the proceeding. TEX. FAM . CODE § 152.206(b) (emphasis added); see also N.M. STAT . § 40-10A-206(b) (same). We have determined that the Texas court erred in denying the exclusivity of the New Mexico trial court s jurisdiction. Likewise, the New Mexico Court of Appeals has preliminarily determined that the New Mexico trial court erred in deferring to Texas. Given the New Mexico court s dismissal and the Texas court s erroneous retention, the appropriate course is for the Texas trial court to confer as soon as possible with the New Mexico 15 Powell, 165 S.W .3d at 328 (quoting T EX. FAM . CODE § 152.206(b)). 14 Court of Appeals. Accordingly, without hearing oral argument, TEX. R. APP. P. 52.8(c), we lift our stay and order the Texas court to communicate promptly with the New Mexico Court of Appeals. See TEX. FAM . CODE § 152.206(b); see also Powell, 165 S.W.3d at 328. Unless that court decline[s] to exercise jurisdiction on the ground that [Texas] is the more appropriate forum to determine [J.S.D. s] custody . . . under Section 207 or 208, the trial court shall dismiss the child custody portion of the case. See UNIF. CHILD CUSTODY JUR. & ENF. ACT § 201(a)(3), 9 U.L.A. 671 (1997); see also N.M. STAT . § 40-10A-201(a)(3); TEX. FAM . CODE § 152.201(a)(3). We are confident the trial court will comply, and our writ will issue only if it does not. __________________________________ Wallace B. Jefferson Chief Justice OPINION DELIVERED: December 21, 2012 15
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