Legal Question in Family Law in California

"Is there a form that would give her sole physical custody of the baby while they were in Texas, but he would still retain his legal rights? Yes. Your daughter can validly make a custody agreement of legal and physical custody subject to the approval of the court in California. (Note it is not binding on the Courts, but nevertheless would be approved by the court as long as its in the child's best interests).

"Would that document or court order be in effect until they come back from Texas" Yes.

"or could he get out of the California order in Texas?" Depends what you mean "get out of." If you mean modify the order then only if the legal requirements are met can a Court in Texas do that.

Mr. Kubler is licensed in Texas and California. There is no attorney-client relationship and this information is intended not to be legal advice but is merely educational information.

Mr. Kubler may be admitted to practice in TX and CA but it does not appear he does much inter-state family law. The situation you describe is much trickier than his simplistic comments.

Yes, your daughter can obtain a sole physical and legal custody order in California and then move to Texas. That order would remain in effect until changed by a court. The father would have to go to court and show the court that changing the order would be in the best interests of the minor child. WHERE he would go to court and what temporary orders he might be able to get are the complicating issues.

While the child continues to reside in California, the California courts have exclusive jurisdiction. As long as the child remains in California OR one parent remains in California, the California courts continue to have exclusive jurisdiction over the child and any order modifications (unless the parent staying in CA waives it). Once both parents and the child have relocated to another state, however, the new home state has secondary concurrent jurisdiction over the child. In the event of a dispute or other reason for modification of custody, the new home state can exercise temporary emergency jurisdiction and then either of the parents can request that California abstain from exercising continuing jurisdiction - allowing the new state to take over. Whether the Texas court would do that depends both on Texas law, and what the Texas court believes is in the best interests of the minor child.

If your daughter does follow this plan, she should not only get a binding custody order in CA before she leaves, I would also recommend that she get a jurisdictional waiver agreement from the father that he waives the right to seek Texas jurisdiction for anything to do with the child. I'm not sure whether that would be enforceable (they are in commercial contracts, but Family Law is it's own world) but it would at least be one more barrier to him pulling a fast one in TX.

Mr. McCormick apparently dislikes attorneys in Southern California responding to posters in Northern California. However his long winded answer goes awry near the end with "secondary continuing jurisdiction", a term he has apparently created and a misnomer for the situation. Also his wondering about what actually happens in the other state is troubling to me. California and Texas have both enacted the Uniform Child Custody Jurisdiction Act (UCCJA), which is in title 28 of the United States Code. A federal law created in part to provide uniformity between all our states in modifying custody orders. It means it is not much different here in CA verses TX to modify an out of state custody order.

Also while Mr. McCormick mischaracterizes my first answer as simplistic as opposed to just being brief, he goes so far as to create a mountain out of a mole hill. Presumably because I said "if the legal requirements are met." Well if I felt the need to explain all the legal requirements of obtaining jurisdiction to then modify an out of state order in the UCCJA I would be wasting my time as the question merely asked whether the boyfriend "could get out of it." Which could just mean, can Texas ignore the agreement/custody order. The simple answer to that is no (but that doesn't stop people from trying and then litigation to undo it). Also Mr. McCormick's comment regarding modification using the best interest standard in Texas also goes awry. Texas, like California requires a substantial change in circumstances when modifying orders.

Now the point about the agreement to waive venue is seemingly valid. In fact I suggested something similar in another post a few days about creditors but cautioned it would not trump the state law. I would discuss this more but it's speculative. The boyfriend can surely make the agreement and he may never challenge it in court.

Good luck with your daughter and granddaugher.

Mr. Kubler is licensed in Texas and California. There is no attorney-client relationship and this information is intended not to be legal advice but is merely educational information.