Berwick v. Wagner
336 S.W.3d 805
Tex. App.2011Background
- Berwick appeals TX trial court’s registration of a CA parentage judgment as a TX child custody determination under Tex. Fam. Code §152.305.
- CA judgment signed Sept. 29, 2005, stayed until child’s birth; child born Dec. 7, 2005 in California.
- Gestational surrogacy produced C.B.W.; Berwick and Wagner sought to be legal parents and have custody upon birth; birth certificate directions favored Berwick and Wagner.
- CA Petition sought legal/physical custody and birth-certificate designation; stipulation referenced a proposed Judgment of Paternity.
- CA judgment declared Berwick and Wagner legal parents for births during a period; surrogate and her husband were not the legal parents.
- TX SAPCR proceedings followed years later; registration of CA order contested on custody- determination and birth-date jurisdiction grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CA judgment is a child custody determination under the UCCJEA. | Berwick: judgment lacks custody language; not a custody order. | Wagner: order adjudicates custody by implication; not required to expressly state custody. | Yes; the judgment qualifies as a custody determination under UCCJEA. |
| Whether incorporation by reference to the stipulation is necessary for custody status. | Berwick: stipulation not incorporated; judgment silent on custody. | Wagner: custody adjudication exists by terms and effect of order. | Incorporation not required; judgment can be custody determination even if not expressly incorporating stipulation. |
| Whether pre-birth jurisdiction invalidates registration due to child not yet born. | Berwick: CA lacked jurisdiction pre-birth; unborn child. | Wagner: CA had pre-birth proceedings with stayed judgment, jurisdiction attaches at birth. | California judgment properly exercised jurisdiction upon birth; registration upheld. |
| Whether explicit custody terminology is required in the judgment. | Berwick: must expressly say custody. | Wagner: custody rights can be determined by termination/parentage actions. | No express word 'custody' required; termination/custody rights can constitute a custody determination. |
Key Cases Cited
- In re McMillan, 265 S.W.3d 918 (Tex.App.-Austin 2008) (paternity actions may not implicate UCCJEA custody issues)
- Waltenburg v. Waltenburg, 270 S.W.3d 308 (Tex.App.-Dallas 2008) (UCCJEA unborn-child jurisdiction limitations; home-state priority concerns)
- In re J.C.B., 209 S.W.3d 821 (Tex.App.-Amarillo 2006) (parental-rights termination can involve custody determinations)
- Guernsey v. Guernsey, 794 So.2d 1108 (Ala.Civ.App.1998) (custody-related implications of parental rights and paternity actions)
- Lambert v. Lambert, 993 S.W.2d 123 (Tex.App.-San Antonio 1999) (terminating parental rights involves custody considerations)
- Richardson v. Green, 677 S.W.2d 497 (Tex. 1984) (custody vs. termination appellate jurisdiction distinctions)