in the Interest of W.T.H., a Child, 04-16-00055-CV

Background

Two siblings, K.J.F. (born 2010) and W.T.H. (born 2012), lived in Outagamie County, Wisconsin with their mother (Shauni) and W.T.H.’s father (Travis); Travis died January 2, 2015; Shauni and the children moved to Karnes County, Texas in mid-January 2015.
Shauni died May 22, 2015; K.J.F. remained with maternal grandfather Kevin F. in Karnes County; W.T.H. went to live with a maternal aunt in Wilson County.
On June 2, 2015 Kevin F. filed in Karnes County for grandparent possession/ custody of both children; on July 7, 2015 the Texas trial court appointed Kevin F. nonparent sole managing conservator of both children.
Meanwhile, an Outagamie County, Wisconsin court had entered a Stipulation and Judgment of Paternity (2013) that granted legal custody jointly to the parties; W.T.H.’s paternal grandmother Penny H. later filed for permanent guardianship in Wisconsin and then filed in Texas a bill of review and plea to the jurisdiction.
On October 27, 2015 the Texas court granted Penny’s bill of review as to W.T.H., severed the children’s cases, and set a new trial for W.T.H.; on January 6, 2016 the Texas court granted Penny H.’s plea to the jurisdiction, finding Wisconsin retained continuing jurisdiction over W.T.H. under Wisconsin law and that Texas was not the child’s home state when Kevin filed.
Kevin F. appealed, arguing Wisconsin lost jurisdiction (parents deceased), Texas had properly exercised jurisdiction, and Wisconsin was an inconvenient forum; the Fourth Court of Appeals affirmed dismissal for lack of jurisdiction.

Issues

Issue	Plaintiff's Argument (Kevin)	Defendant's Argument (Penny/Wisconsin)	Held
Whether Wisconsin retained continuing, exclusive jurisdiction over custody	Wisconsin lost jurisdiction after both parents died; Texas order (July 7) established Texas jurisdiction	Wisconsin’s 2013 Stipulation/Judgment made a custody determination and thus Wisconsin retains continuing jurisdiction under its UCCJEA	Wisconsin retains continuing jurisdiction; Texas court correctly dismissed for lack of jurisdiction
Whether Texas was child’s “home state” when Kevin filed (UCCJEA §152.201)	Texas should be treated as home state; Texas statutes authorize Texas jurisdiction	W.T.H. had lived in Texas less than six months when Kevin filed (filed June 2, 2015)	Texas was not the child’s home state on the filing date; Kevin failed to prove other UCCJEA bases and did not preserve them with record/briefing
Whether Texas could modify Wisconsin custody under Tex. Fam. Code §152.203	Texas could modify because Wisconsin no longer appropriate	§152.203 bars modification unless Texas has initial jurisdiction under §152.201; Wisconsin custody still exists	Court did not reach modification; held Texas lacked initial jurisdiction so §152.203 precluded modification
Whether Wisconsin was an inconvenient forum or forum non conveniens supports Texas jurisdiction	Wisconsin is inconvenient; Texas is more appropriate to decide custody	§152.207 applies only where Texas has jurisdiction; cannot use it to attack another state’s jurisdiction; no record support for forum non conveniens claim	Court rejected the argument—Texas may not invoke §152.207 to decline another state’s jurisdiction; no record to support a common-law forum non conveniens claim

Key Cases Cited

In re Dean, 393 S.W.3d 741 (Tex. 2012) (UCCJEA prioritizes home-state jurisdiction)
Powell v. Stover, 165 S.W.3d 322 (Tex. 2005) (home-state analysis focuses on child’s physical presence)
Barabarawi v. Rayyan, 406 S.W.3d 767 (Tex. App.—Houston [14th Dist.] 2013) (pleader bears burden to allege UCCJEA jurisdictional facts)
In re Walker, 428 S.W.3d 212 (Tex. App.—Houston [1st Dist.] 2014) (operative date for home-state inquiry is filing date)
In re Hattenbach, 999 S.W.2d 636 (Tex. App.—Waco 1999) (discussion of continuing jurisdiction in child-support context)
Save Our Springs All., Inc. v. City of Dripping Springs, 304 S.W.3d 871 (Tex. App.—Austin 2010) (appellate review is limited to the appellate record provided)