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| | Transfer Based on Child's Residence |
When there is a court of continuing, exclusive jurisdiction over a child, any suit to modify an order affecting that child must be filed in that court, even if venue has become improper due to a change in the child's residence. As a result, in such instances either the petitioner or the respondent in a modification action should seek to transfer the action from the court of continuing, exclusive jurisdiction to another court. On proper motion, the court of continuing, exclusive jurisdiction must transfer the proceeding to another county if the child has resided in the other county for six months or longer.
Computing six-month period.
In computing the time in which the child has resided in a county, the court must look to the child's principal residence during the six-month period preceding the commencement of the suit. The residence period need not be continuous and uninterrupted. The six-month period begins to run when the child's residence in the different county actually begins, rather than when the custody decree is signed. The six-month residence may include time prior to the parents' divorce or prior to the appointment of a managing conservator. However, unless the child resides in the county to which transfer is sought at the time the motion to transfer is filed, it is irrelevant that the child may have resided there for more than six months at some earlier time.
Determining county of child's residence.
For purposes of suits to modify a previous SAPCR decree, the child's residence is one of the following:
- The residence of the parent appointed managing conservator with the right to determine residence.
- The residence of a person with whom the parent whose residence would otherwise control has left the child.
- Where the child is found, if it appears that the child is not under the care and control of an adult.
- Transfer of modification suit filed while another modification suit or enforcement motion is pending. If a suit to modify or a motion for enforce is filed while another suit to modify or motion to enforce is pending, the subsequent proceedings may be transferred only if the pending proceedings could have been transferred at the time those proceedings were filed.
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