jurisdiction, venue, and transfers in suits affecting the

JURISDICTION, VENUE, AND TRANSFERSIN SUITS AFFECTING THE PARENT-CHILD

RELATIONSHIP (WHERE ALL PARTIESRESIDE IN TEXAS)

William C. Koons*

Prior to the enactment of Title II of the Family Code, attorneyspracticing in the family law area were often required to deal with ajungle of conflicting case law when confronted with a jurisdiction,venue, or transfer problem. The Code, however, has given us muchneeded, though drastic, changes in our jurisdiction and venue rules.With few exceptions, our Pre-Code law was governed by the samerules as applicable to all other areas of the law, i.e., every districtcourt had potential jurisdiction to modify a prior court's judgmentof custody and visitation, with proper venue generally being in thecounty of the defendant's residence. The Family Code on the otherhand adopts a simple approach, limiting jurisdiction over a child tothe court where jurisdiction originally attached.' This approachembodies the concept of the court of continuing jurisdiction.2 Thatis, all of the most common actions to modify' a prior order of thecourt where jurisdiction first attached must be initiated, though notnecessarily tried, in that court.' The Family Code has also simpli-fied the venue rules. Under the Family Code proper venue now isbased more appropriately upon the child's residence, with the resi-dence of the respondent being immaterial except where such resi-dence also establishes the residence of the child.'

It is ironic that these concepts that now make our law concern-

* Partner, Geary, Stahl, Koons, Rohde & Spencer, Dallas, Texas; J.D., Southern Meth-

odist University School of Law, 1958; Certified Family Law Specialist, Texas Board of LegalSpecialization; Board of Directors, Family Law Section, Dallas Bar Association; Member,American Academy of Matrimonial Lawyers; Program faculty, writer, and lecturer for TexasState Bar Advanced Family Law Seminar, 1977-78.

1. TEX. FAMILY CODE.ANN. § 11.05(C) (Supp. 1976-1977).

2. See Smith, Commentary on Title 2, Texas Family Symposium, 5 TEX. TECH L. REV.389, 396-97 (1974).

3. E.g., managing or possessory conservatorship, access, and support.4. Matters pertaining to certain Uniform Reciprocal Support Act proceedings, adop-

tion, and change of name proceedings, have their own particular jurisdiction and venueprovisions and are generally not included within the scope of this article. See generally TEx.FAMILY CODE ANN. §§ 21.01-.66 (1975).

5. TEX. FAMILY CODE ANN. § 11.04 (1975).6. Id.

TEXAS TECH LAW REVIEW

ing jurisdiction and venue so simple continue to be a major sourceof confusion for many attorneys and trial courts. While it is true thatthe new Code, like most pieces of major legislation, has left us withsome uncertainties and gray areas, it is submitted that most of theconfusion would be abated if these basic concepts are understoodand accepted. The intent of this article is to discuss these conceptsin the context of suits affecting the parent-child relationship, 7 whereall parties reside in Texas.'

Any suit brought under Title II, Subtitle A of the Family Code,in which is sought the appointment of a managing conservator orpossessory conservator, access to a child, support of a child, or es-tablishment or termination of the parent-child relationship, is de-fined by the Family Code as a "suit affecting the parent-child rela-tionship." 9 As provided by the statute, specific, and sometimestechnical or novel principles govern the courts and manner in whichthese suits may be brought. A fundamental understanding of theseprinciples is a threshold requisite to undertaking representation ofa client in this area of the law. For clarity's sake these principleswill be discussed under two general categories: (1) jurisdiction insuits affecting the parent-child relationship and (2) venue andtransfer of suits and motions affecting the parent-child relationship.

I. JURISDICTION IN SUITS AFFECTING THE PARENT-CHILD

RELATIONSHIP

The elemental concept in dealing with jurisdiction in parent-child suits is that of the court of continuing jurisdiction.'" It is thisconcept that has been a major source of confusion since the enact-ment of Family Code." Apparently, because this procedure isunique to the family law area, many attorneys have had great diffi-culty in understanding or at least accepting this otherwise simpleconcept.

7. TEX. FAMILY CODE ANN. § 11.01(5) (1975).8. Jurisdiction in suits where all parties do not reside in Texas has been treated else-

where. See, e.g., Sampson, Jurisdiction in Divorce and Conservatorship, 8 TEX. TECH L. REV.159 (1976).

9. TEX. FAMILY CODE ANN. § 11.01(5) (1975).10. TEX. FAMILY CODE ANN. § 11.05(a) (Supp. 1976-1977).11. This is not to say that confusion was nonexistent before the enactment of the Family

Code. See Sampson, Jurisdiction in Divorce and Conservatorship Suits, 8 TEX. TECH L. REV.

159, 161 n.1 (1975).

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PARENT-CHILD RELATIONSHIP

The concept of the court of continuing jurisdiction is based onthe statutory provision, which states that with certain exceptions:"

(W]hen a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing jurisdiction of allmatters provided for under this subtitle in connection with thechild, and no other court has jurisdiction of a suit affecting theparent-child relationship with regard to that child except on trans-fer as provided in § 11.06 of this code.'"

Such jurisdiction is exclusive, and is the method provided by theFamily Code to ensure that jurisdiction of most parent-child suitsor motions affecting an individual child are maintained in a singlecourt. Thus, once a court acquires jurisdiction of a particular childin a parent-child suit, and enters a final judgment therein, thatcourt retains continuing jurisdiction over subsequent suits and mo-tions affecting the child 5 until the matter is transferred to anothercourt in accordance with the transfer provisions."1

A. How Exclusive and Continuing Jurisdiction Attaches

Before exclusive jurisdiction can exist, the court of continuingjurisdiction must be established. Continuing jurisdiction over thesubject matter attaches in a court immediately upon the filing of aparent-child suit. 7 For example, in Guillory v. Davis'" the husbandfiled a parent-child suit in Jefferson County at 9:09 a.m. on March25, 1975. The wife filed a similar suit in Montgomery County at 4:00p.m. on the same day. Both courts issued immediate but conflictingorders regarding temporary conservatorship of the subject children.The husband sought leave to file an application for a writ to prohibit

12. TEX.FAMILY CODE ANN. § 11.05(b) (1975); TEX. FAMILY CODE ANN. § 11.05(C) (Supp.1976-1977).

13. TEX. FAMILY CODE ANN. § 11.05(a) (Supp. 1976-1977).14. Some of the actions not included in this action include change of name, certain

URESA proceedings, emergency proceedings, and perhaps some form of habeas corpus pro-ceedings. See TEX. FAMILY CODE ANN. § 12.04 (Supp. 1976-1977); Smith, Commentary onTitle 2, Texas Family Code Symposium, 5 TEx. TEcH L. REv. 389, 416-17 (1974).

15. Curtis v. Gibbs, 511 S.W.2d 263, 266 (Tex. 1974). Such jurisdiction is subject to theexceptions provided in TEX. FAMILY CODE ANN. § 11.05(b)-(d) (1975 & Supp. 1976-1977).

16. TEX. FAMILY CODE ANN. § 11.06 (1975). See Boriack v. Boriack, 541 S.W.2d 237 (Tex.Civ. App.-Corpus Christi 1976, writ dism'd). It should be noted that exclusive continuingjurisdiction does not arise if the exceptions in TEX. FAMILY CODE ANN. § 11.05(b)-(d) (1975 &Supp. 1976-1977) are met. See also TEx. FAMILY CODE ANN. § 11.06 (1975).

17. Smith, Commentary on Title 2, Texas Family Code Symposium, 5 TEx. TCH L.Rxv. 389, 397 (1974).

18. 527 S.W.2d 465 (Tex. Civ. App.-Beaumont 1975, no writ).

1977-78]


the Montgomery County court from exercising jurisdiction over thechildren, alleging that exclusive jurisdiction had already attachedin the Jefferson County court. Although the court of civil appealsfound that it had no appellate jurisdiction to rule on the matter, itreviewed the proceedings below and stated: "[J]urisdiction at-tached upon the filing of the suit in Jefferson County and . . . itcannot be taken away or arrested by the subsequent proceedings inanother court."' 19

The theory upon which the jurisdiction of the court of first filingis based was first expounded in Curtis v. Gibbs,19 a case involvingthe successive filing of parent-chilld suits in different counties. Inthat case the supreme court stated that the court in which the firstpetition was filed acquired "dominant jurisdiction" over mattersaffecting the parent-child relationship, with respect to the child, tothe exclusion of the court in which the subsequent petition wasfiled."'

Although continuing jurisdiction attaches upon filing, such ju-risdiction is probably subject to divestiture prior to the entry of finaljudgment.2 For example, if the parties to a divorce action, to whicha parent-child suit has been joined, reconcile and dismiss the actionprior to the entry of final judgment, the dismissal would divest thecourt of exclusive continuing jurisdiction over the subject children. 23Though this result is not mandated by the Family Code, it appearsthat it should obtain, based on the reasoning and result reached incases where a judgment or order is entered but later withdrawn bythe court .2

B. Modification of Prior Judgment or Order

Having recognized the concept of exclusive continuing jurisdic-tion, it would appear that every action seeking modification of aprior order or judgment must be maintained in the court enteringthat order or judgment. Prior to January 1, 1974, however, the con-

19. Id. at 467.20. 511 S.W.2d 263 (Tex. 1974).21. Id. at 267.22. Examples of this circumstance include dismissal for want of prosecution and volun-

tary non-suit.23. This issue is not directly addressed by the Family Code. However, analogous au-

thority in cases where a judgment or order is entered but later withdrawn supports this result.Boriack v. Boriack, 541 S.W.2d 237 (Tex. Civ. App.-Corpus Christi 1976, writ dism'd).

24. See Boriack v. Boriack, 541 S.W.2d 237 (Tex. Civ. App.-Corpus Christi 1976, writdism'd).

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cept of the court of continuing jurisdiction had not been formulatedby the Code and thus, there was no such court. Consequently, in anaction seeking modification of a prior order or judgment, it is imper-ative to determine whether the prior order or judgment was enteredbefore or after January 1, 1974. A determination of the court havingexclusive continuing jurisdiction over modifications of prior ordersand judgments is dependent upon the date such prior order or judg-ment was entered.

If an order or judgment was entered subsequent to January 1,1974, the court entering such judgment retains exclusive continuingjurisdiction over matters affecting the parent-child relationshipwith respect to the child. 5 Therefore, any motion seeking to modifya post-January 1, 1974, order or judgment must be at least initiatedonly in the court retaining exclusive continuing jurisdiction,"A evenif venue has become improper.

A very different procedure is required with respect to actionsseeking to modify orders and judgments that were entered prior toJanuary 1, 1974. Stated generically, there is no exclusive court ofcontinuing jurisdiction with respect to the modification of ordersand judgments entered prior to January 1, 1974.7 The relevant sta-tutory provision that supports this rule states:

Any action or suit commenced after January 1, 1974, that has asits object the modification of an order, judgment, or decree enteredprior to January 1, 1974, but which under this Act would be a suitaffecting the parent-child relationship, is governed by the provi-sions of this Act, and shall be treated as the commencement of asuit affecting the parent-child relationship in which no court hascontinuing exclusive jurisdiction. 8

That statutory provision was interpreted by the Texas SupremeCourt in Curtis v. Gibbs.2" In that case the supreme court held thatno court can have "continuing jurisdiction" based upon its priorjurisdiction over a suit in which final judgment was entered prior

25. TEX. FAMILY CODE ANN. § 11.05(a) (Supp. 1976-1977). This jurisdiction is subjectto the exceptions provided in TEX. FAMILY CODE ANN. § 11.05(b)-(d) (1975 & Supp. 1976-1977), and the transfer provisions of TEX. FAMILY CODE ANN. § 11.06 (1975).

26. TEX. FAMILY CODE ANN. § 11.05(a) (Supp. 1976-1977).27. Acts 1973, 63d Leg., P. 1411, ch. 543, § 4(b). It should also be pointed out that for

purposes of enforcing a contempt order, the original court may retain sufficient jurisdictionto enforce such an order.

28. Acts 1973, 63d Leg., P. 1411, ch. 543, § 4(c).29. 511 S.W.2d 263 (Tex. 1974).

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to January 1, 1974.10 In Curtis a judgment of divorce was entered inBowie County in 1971. On January 18, 1974, the husband filed apetition in Dallas County to modify the custody provision of the1971 judgment. Thereafter, on February 15, 1974, the wife filed apetition in Dallas County to modify the custody and support provi-sions of the 1971 judgment. In resolving the jurisdictional conflict,the supreme court held that each of the petitions commenced a"new suit in which 'no court has continuing exclusive jurisdiction. . "31 Because the Bowie County action was commenced priorto the Dallas County action, the Bowie County court acquired"dominant jurisdiction" to the exclusion of all other coordinatecourts. Under the Curtis rationale, therefore, a petition to modify apre-January 1, 1974, judgment or order is the commencement of anew parent-child suit; and the court in which the petition is filedthereby acquires exclusive continuing jurisdiction with respect toconservatorship, access, visitation, support modification, and estab-lishment or termination of the parent-child relationship.32

C. Determination of the Court of Continuing Jursidction

Because it is only in the court of continuing jurisdiction thatan action to modify an order or judgment must be filed, it is neces-sary that the court of continuing jurisdiction be ascertained. Indetermining the court of continuing jurisdiction, information re-ceived from the Department of Human Resources 33 is significant. 34

The procedure for determining whether another court previously hasacquired exclusive continuing jurisdiction with respect to the chil-dren is set out by the appropriate statutory provision. 35 That statuterequires the petitioner or the court to direct an inquiry to the De-partment of Human Resources requesting identification of thecourt, if any, that last had jurisdiction over the children in a parent-child suit.36 This inquiry is to be made unless: (1) the petition con-tains an undisputed allegation that "no court has continuing juris-diction" of the child,37 or (2) the petition contains an undisputedallegation that the court in which the petition is filed already has

30. Id. at 267.31. Id.32. Id.33. This Department was formerly known as the Department of Public Welfare.34. TEx. FAMILY CODE ANN. § 11.071 (Supp. 1976-1977).35. Id.36. Id.37. TEX. FAMILY CODE ANN. § 11.071(a) (Supp. 1976-1977).

[Vol. 9:243

1977-781 PARENT-CHILD RELATIONSHIP 249

acquired and retains continuing jurisdiction over the child as a re-sult of the prior proceeding. 38 Accordingly, if inquiry is made, theDepartment of Human Resources is required to reply within tendays after the receipt of the request. 39

The effect of this statutory provision is to accept the peti-tioner's jurisdictional allegations as true unless they are contestedby responsive pleadings. A potential problem is noted, however, inpleading those jurisdictional allegations. When the petitioner al-leges that another court subsequent to January 1, 1974, has grantedcustody or conservatorship of the child, this undisputed allegationitself may serve to rebut the "no other court" jurisdictional allega-tion.'" If this reasoning is followed, there can be no "undisputedallegation" that "no court has continuing jurisdiction" where thesuit is to modify even a foreign post-1974 order or judgment. Conse-quently, as a point of practice, if any question exists concerning theaccuracy of the jurisdictional allegations, the attorney should takecare to make inquiry of the Department of Human Resources be-cause of the disastrous consequences of litigating in a court withoutjurisdiction."

The nature of the Department of Human Resources' responsehas a definite effect on the determination of the court of continuingjurisdiction. If the Department of Human Resources reports thatanother court has previously acquired jurisdiction of the child in aparent-child suit, the court in which the present petition is pendingmust dismiss the present suit without prejudice. A different resultis reached, however, if the Department of Human Resources' re-sponse states that no other court has acquired jurisdiction of thechild in a parent-child suit.42 In such a case the court in which apetition is filed acquires and retains continuing jurisdiction over achild, provided the petition states that no other court has continu-ing jurisdiction over the child. 3 It is very important to note that thisstatutory provision applies even when the Department of HumanResources' response erroneously reports that the child previouslyhas not been the subject of a parent-child suit." That is, if the

38. Id.39. TEx. FAMILY CODE ANN. § 11.071(b) (Supp. 1976-1977).40. Brown v. Brown, 555 S.W.2d 784 (Tex. Civ. App.-El Paso 1977).41. Id.42. TEX. FAMILY CODE ANN. § 11.071(d) (Supp. 1976-1977).43. TEX. FAMILY CODE ANN. § 11.05(c) (Supp. 1976-1977).44. TEX. FAMILY CODE ANN. § 11.071 (Supp. 1976-1977).


Department of Human Resources reports that the child has not beenthe subject of a previous parent-child suit, when, in fact, the childhas been the subject of a previous parent-child suit, the secondcourt, nevertheless, acquires continuing jurisdiction along with theoriginal court. It has been recently held, however, that the erroneousreport may be corrected; and when so corrected, only the originalcourt is the court of continuing jurisdiction.4 5

This aspect of the statute could have some unusual ramifica-tions. Section 11.06(d), the coordinate statutory provision, states:

If a court has continuing jurisdiction over a child but another courthas acquired jurisdiction over the child in a suit affecting theparent-child relationship under § 11.05(c) of this Code, the courtpreviously having jurisdiction over the child, on a motion of anyparty or on the court's motion, shall transfer the proceeding to thecourt which has acquired jurisdiction under § 11.05(c) of thisCode."

The effect of section 11.06(d) and section 11.05(c) is to allow asubsequent court to arrest and acquire exclusive continuing juris-diction from a court that already has exclusive continuing jurisdic-tion with respect to the child. The statute allows this result, how-ever, only where the subsequent court is informed erroneously bythe Department of Human Resources that the child previously hasnot been the subject of a parent-child suit and such report has notbeen corrected.47 Furthermore, the court previously having continu-ing jurisdiction over the child is required to transfer its proceedingto the subsequent court only upon a motion.4 8 That is, section11.06(d) is not automatic. In addition, section 11.05(c) does notspeak in terms of "exclusive" jurisdiction, as does the general provi-sion in section 11.05(a). Thus, as was recently held by the court inCounts v. Counts, 9 both courts would have concurrent continuingjurisdiction over a particular child. 50 Until either a motion to trans-fer is made and granted or the report from the Department ofHuman Resources is corrected, it would appear that both courts

45. Counts v. Counts, 560 S.W.2d 186 (Tex. Civ. App.-Dallas 1977).46. TEX. FAMILY CODE ANN. § 11.06(d) (1975).47. Id.48. Id. This result is permitted by the initial clause of TEX. FAMILY CODE ANN. § 11.05(a)

(Supp. 1976-1977), which states that "except as provided in subsection ... (c), .. of thissection .. "

49. Counts v. Counts, 560 S.W.2d 186 (Tex. Civ. App.-Dallas 1977).50. Id. at 187.

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could enter valid temporary orders under section 11.11. 51A still different circumstance is presented when a court enters

an order or judgment in the absence of a response from the Depart-ment of Human Resources when in fact, another court previouslyhas acquired continuing jurisdiction over the child. This circum-stance is addressed by the statutory provision as follows:

If a request for information from the department relating to theidentity of the court having continuing jurisdiction of the child hasbeen made pursuant to Subsection (a), no final order, except anorder of dismissal, shall be entered until the information is filedwith the court. If a final order is entered in the absence of the filingof the information from the department, the order is voidable ona showing that a court other than the court that entered the orderhas continuing jurisdiction.5

In focusing on the "voidable" provision of the statute, the questionarises whether that provision operates so as to validate an order orjudgment entered by a second court subsequent to the acquisitionof continuing jurisdiction by an original court.

Prior to the enactment of this provision," a judgment or orderentered by a court other than the court of exclusive continuingjurisdiction was apparently void, not voidable, for total lack of juris-diction over the subject matter. This conclusion is based on thepresumption that "exclusive" means to the exclusion of all others,and on the recognized principle that subject matter jurisdictioncannot be conferred upon a court by the consent of the parties.54

This change in language appears to give potential viability to thesubsequent court's order or judgment. Additionally, it should benoted that the susequent court's order or judgment is "voidable"only on a showing that another court previously had acquired con-tinuing jurisdiction.5 Moreover, it is suggested that "voidable," asused here, merely means the type of proceeding that would makethe order "void": 56 that is, voidable on a showing that another court

51. TEX. FAMILY CODE ANN. § 11.06(d) (1975). See Counts v. Counts, 560 S.W.2d 186(Tex. Civ. App.-Dallas 1977).

52. TEX. FAMILY CODE ANN. § 11.071(c) (Supp. 1976-1977).53. Id. This provision was added by amendment effective September 1, 1975.54. E.g., Mills v. Howell, 416 S.W.2d 453 (Tex. Civ. App.-Austin 1967, no writ);

Daniel v. Dallas Independent School Dist., 351 S.W.2d 356, (Tex. Civ. App.-El Paso 1961,writ ref'd n.r.e.).

55. Counts v. Counts, 560 S.W.2d 186 (Tex. Civ. App.-Dallas 1977).56. See Smith, Commentary on Title 2, Texas Family Code Symposium Supplement,

8 TEx. TECH L. REv. 19, 33 (1976).

1977-78]


had jurisdiction. 7 Consequently, such a construction could possiblysubject the subsequent court's order to collateral attack.

The "voidable" provision raises an additional problem concern-ing a possible prerequisite to its operation. Read as a whole, section11.071(c) should only be construed as conditioning operation of the"voidable" provision upon a request for information having beenmade to and pending with the Department of Human Resources.Under this construction, where a court other than the court of con-tinuing jurisdiction enters an order with respect to the child, andno request for information was made to the Department of HumanResources, the subsequent court's order of judgment probably isvoid, not voidable, for absolute lack of subject matter jurisdiction.Such a construction would place a premium upon the act of request-ing information from the Department of Human Resources. Accord-ingly, an additional question in this area relates to the availabilityof waiver and estoppel defenses to the prevailing party of the subse-quent suit if the adverse party fails to raise the jurisdictional issue.Certainly, it would seem that if the proceeding is void for want ofsubject matter jurisdiction, such defenses would not be available."

Another possible construction of the statute 9 concerns an un-challenged suit or motion erroneously alleging "no other court hascontinuing jurisdiction" or "this court has continuing jurisdiction."Such a motion or suit might divest the original court of continuingjurisdiction upon proceeding to the judgment. This constructioncould be supported by the argument that the Texas Constitution,in granting jurisdiction over minors to "district courts" would itselfvest jurisdiction in the subsequent court."

In addition to these questions, the time and manner in whichthe "voidable" provision is invoked is not clear. The statute does notaddress the questions of how and when the "showing" that a pre-vious court, other than the court which entered a subsequent orderor judgment, had acquired continuing jurisdiction must be made,in order to void the subsequent court's order or judgment. Althoughthe statute provides no clear answers, it would seem that an actionto set aside a judgment as being voidable would have to be by directattack. As a result, rules of law generally governing direct and col-

57. TEX. FAMILY CODE ANN. § 11.071(c) (Supp. 1976-1977).58. See Brown v. Brown, 555 S.W.2d 784 (Tex. Civ. App.-El Paso 1977).59. E.g., Boriack v. Boriack, 541 S.W.2d 237 (Tex. Civ. App.-Corpus Christi 1976, writ

dism'd).60. TEx. CONST. art. V, § 8.

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lateral attacks on judgments would probably apply. When such anattack must be made, however, is also an open question. A veryrecent case, Brown v. Brown,6' permitted a successful attack afterthe time for motion for new trial had expired on appeal by petitionfor writ of error. Conceivably, if the proceeding must be by directattack, it would be required to be filed within the time for a bill ofreview. However, if the void judgment can be attacked collaterally,it would appear that there would be no time limit at all.

The statute does not address the opposite situation, i.e. wherethe Department of Human Resources erroneously reports that an-other court previously has acquired continuing jurisdiction with re-spect to the child. It would seem apparent, however, that a clerk'smistake made after the conclusion of a trial would not have theeffect of voiding or jeopardizing an otherwise valid order.2

D. Termination of Court of Continuing Jurisdiction

Although the jurisdiction of the court of continuing jurisdictionis exclusive, it is not perpetual. A court's exclusive and continuingjurisdiction is terminated by the final decree of adoption, 3 by cer-tain orders in paternity and legitimation actions, 4 and more impor-tantly, where the proceeding is transferred by order of the court.15

Moreover, a court of exclusive continuing jurisdiction ceases to havejurisdiction to modify a fully performed prior order or judgmentafter the child attains the age of eighteen years or is otherwise eman-cipated."

61. 555 S.W.2d 784 (Tex. Civ. App.-El Paso 1977).62. The holding in Boriack v. Boriack, which was decided under the Family Code as it

existed prior to the September, 1975 amendments when a request for information from theDepartment of Human Resources was mandatory in all situations, is now of no particularsignificance. However, the court makes two statements that appear to be contradictory andare worthy of consideration. According to the court: "[i]f another court is determined to havecontinuing jurisdiction the [subsequentl court must dismiss the suit without prejudice."Boriack v. Boriack, 541 S.W.2d 237, 241 (Tex. Civ. App.-Corpus Christi 1975, writ dism'd),citing TEX. FAMILY CODE ANN. § 11.07 (1975) (emphasis added). And, "if it were determinedthat another court did have continuing jurisdiction of the children, then the proper procedurewould have been for the appellant to seek a transfer of the proceedings .. " 541 S.W.2d at242, citing TEX. FAMILY CODE ANN. § 11.06 (1975) (emphasis added). The apparent contradic-tory nature of these two statements is resolved upon the close analysis of the code sectioncited by the court. The court's latter and correct statement is applicable only where thesubsequent court acquires jurisdiction under § 11.05(c) of the Family Code as a result of anerroneous report from the Department of Human Resources.

63. TEX. FAMILY CODE ANN. § 11.05(b) (1975).64. TEX. FAMILY CODE ANN. § 11.05(d) (Supp. 1976-1977).65. TEX. FAMILY CODE ANN. § 11.06 (1975).

66. TEX. FAMILY CODE ANN. § 14.05(b) (1975).

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In Red v. Red, 7 the Texas Supreme Court faced the issue ofwhether a court retains continuing jurisdiction to modify a fullyperformed previous support order after the child has attained theage of eighteen years. In Red, the trial court had previously entereda child support order requiring the husband to pay child supportuntil the child attained the age of eighteen. After the child hadattained the age of eighteen and the previous child support orderhad been fully performed, the mother filed a petition to modify theprior order to require the resumption and continuation of paymentsby the father. The basis of the mother's motion to modify was thatprior to the age of eighteen, the child had become physically andmentally incapacitated so as to require continued custodial care.6"The supreme court determined that continuing jurisdiction withrespect to the child was lost when the child attained the age ofeighteen where the prior order had been fully performed. 9 Had themother commenced her action for continued support prior to thechild's eighteenth birthday, the trial court would apparently havehad jurisdiction to consider the matter. Consquently, support pay-ments could have been continued for the rest of the child's life.Unfortunately, however, upon the eighteenth birthday, continuingjurisdiction to modify the fully performed prior order was lost.

The rationale in Red could lead to an inequitable result. Thatis, suppose two brothers, age seventeen and eighteen, are totally andpermanently incapacitated in an automobile accident. The seven-teen year-old brother is entitled to continued child support for therest of his life while his eighteen year-old brother is not entitled toreceive any support. The apparent inequity becomes less discerniblein cases where the age difference between the siblings is greater (i.e.,younger brother seventeen and older brother thirty). Consequently,this issue resolves into a policy question of when the "umbilicalcord" of support should finally be cut. Red should not present aquestion of whether a motion for contempt or to reduce to judgmentunpaid support could be filed after the child's eighteenth birthdaybecause such order obviously has not been fully performed. 0

67. 552 S.W.2d 90 (Tex. 1977).68. Id. at 90-91.69. Id. at 92. Note that the opinion in Red was based partially on the fact that the prior

order had been fully performed at the time the child reached majority.70. TEx. FAMILY CODE ANN. § 11.05(b) (1975). Other instances in which a court's con-

tinuing jurisdiction with respect to a child terminates in a paternity action are set forth atTEX. FAMILY CODE ANN. § 11.05(d)(1)-(2) (Supp. 1976-1977).

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PARENT- CHILD RELATIONSHIP

E. Enforcement of Prior Judgment and Orders

When an order or judgment has been rendered by a court ofcontinuing jurisdiction, there are certain perplexing questions thatare sometimes presented in their enforcement. With regard to post-January 1, 1974, judgments and orders, it seems that the rules oflaw generally governing enforcement of court orders and judgmentsby contempt or habeas corpus would apply to orders and judgmentsentered in parent-child suits. A question arises, however, as towhether a court to which exclusive continuing jurisdiction has beentransferred has jurisdiction to enforce the transferring court's priororder or judgment. One case, though not involving transfer, has heldthat a contempt motion to enforce a child support order must befiled and heard not only in the county in which the order was ren-dered but also in the same courthouse." Resolution of this issue,however, must be in favor of jurisdiction in the subsequent court sothat the entire scheme of Title II, subtitle A can be effective. Fur-ther, it would seem logical for the subsequent court to have jurisdic-tion to enforce the prior order of the original court because thesubsequent court has become the court of exclusive continuing juris-diction with respect to all matters affecting the child.72

An additional question arises concerning the propriety of trans-ferring a parent-child suit in the absence of an affirmative requestfor relief with respect to the prior order or judgment. For example,suppose that a wife and a child move from Dallas County, where thecourt of exclusive continuing jurisdiction is situated, to LubbockCounty. The issue then becomes whether the wife may transfer the''exclusive continuing jurisdiction" over matters affecting the childfrom Dallas County to Lubbock County by merely filing a motionto transfer without also filing a motion to modify the prior order.Unfortunately, this issue is not specifically addressed by the FamilyCode. It does appear, however, that section 11.06 speaks of transfersonly in the context of requests for affirmative relief to modify theprior judgment.73

Moreover, it has been held recently in Ex Parte Oden,74 that amotion for contempt, an enforcement proceeding, does not consti-

71. Ex parte Lowery, 518 S.W.2d 897, 901-02 (Tex. Civ. App.-Beaumont 1975, nowrit).

72. TEx. FAMILY CODE ANN. § 11.06 (1975).73. Curtis v. Gibbs, 511 S.W.2d 263 (Tex. 1974).74. 556 S.W.2d 573 (Tex. Civ. App.-Dallas 1977).

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tute a "suit affecting the parent-child relationship."7 Accordingly,as a motion for contempt is not a suit affecting the parent-childrelationship, it would apparently not be subject to transfer withoutan accompanying motion to modify the original suit affecting theparent-child relationship.

The difficult questions surrounding enforcement by a court,other than the original court, of pre-1974 orders and judgments wasanswered by Oden. In Oden the relator was seeking discharge byhabeas corpus from the custody of the sheriff as the result of acommitment order issued from the District Court of Collin County.That commitment order was issued pursuant to a finding of con-tempt for relator's failure to make child support payments as pre-viously ordered, in 1972, by the District Court of Denton County.The "Motion for Contempt" proceeding was instituted by the rela-tor's former wife in July of 1977 in Collin County for the enforce-ment of a pre-1974 support order out of Denton County. In rulingon the application for writ of habeas corpus, the court found thatthe concept of a court of continuing jurisdiction as to enforcementantedates the Family Code.76 Consequently, the court held that theprinciples of the court of continuing jurisdiction as to enforcementapplied to both pre-and post-January 1, 1974, orders.77 Therefore,under the facts of Oden, the motion for contempt should have beeninitiated in the District Court of Denton County; the Collin CountyDistrict Court was without jurisdiction to enforce the pre-1974 sup-port order of another county.

F. Habeas Corpus

Problems similar to those encountered with the enforcement ofpre-January 1, 1974, judgments and orders arise in connection withhabeas corpus proceedings. Habeas corpus is the vehicle providedby the legislature for demanding obedience to existing court ordersand rights of parents with respect to the possession of children.78 The

75. Id.76. Id. See also Boney v. Boney, 458 S.W.2d 907, 911 (Tex. 1970); Ex parte Gonzalez,

111 Tex. 399, 238 S.W.2d 635 (1922).77. Ex parte Oden, 556 S.W.2d 573, 574 (Tex. Civ. App.-Dallas 1977). Specifically,

the court stated that:We assume the Legislature intended to use the phrase "continuing jurisdic-

tion" in the same sense in which this court has heretofore used it in connection withchild support orders: to mean that jurisdiction which continues after finaljudgment.

[Emphasis added] Id., quoting Curtis v. Gibbs, 511 S.W.2d 263, 266 (Tex. 1974).78. TEX. FAMILY CODE ANN. § 14.10 (1975).

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determination of the court of continuing jurisdiction depends onwhether such habeas corpus proceedings constitute parent-childsuits. Only in the case of parent-child suits or modifications does theconcept of the court of continuing jurisdiction have application.Accordingly, this question has been the subject of substantial dis-cussion.79 In a preliminary case, McElreath v. Stewart,'" the su-preme court indicated that a habeas corpus proceeding is not aparent-child suit.' In that case, the court allowed a habeas corpusproceeding in a court other than the court of continuing jurrisdic-tion. Consequently, although the jurisdictional question was notraised or addressed by the court, the result was an implicit holdingthat a habeas corpus proceeding is not a parent-child suit. Thisquestion was specifically addressed, however, when the impliedholding in McElreath was followed in Ex parte Jabara. "2 Originally,the litigation in Jabara began when the wife filed a divorce petitionin Virginia and also sought custody of her two minor children. Sub-sequently, the husband removed the children to Texas, filed fordivorce and sought managing conservatorship of the children. AVirginia domestic relations court and a Dallas domestic relationscourt entered conflicting orders, the Virginia court giving the wifetemporary custody of the children and the Dallas court appointingthe husband as temporary managing conservator of the children.The wife then filed an application for a writ of habeas corpus in thejuvenile court of Dallas County. Thereafter, the juvenile court heldthe husband in contempt for his failure to produce the children. Onappeal, the court of civil appeals addressed, as one of the primaryissues, the question of whether the juvenile court lacked jurisdictionto entertain the habeas corpus proceeding initiated in that court,due to the pendency of the original action in domestic relationscourt.

3

According to the Jabara court the jurisdiction of the juvenilecourt was determined by the nature of the habeas corpus action. Ifthe habeas corpus proceeding comes within the statutory definitionof a suit affecting the parent-child relationship, then the jurisdic-

79. But see Ex parte Lowery, 518 S.W.2d 897 (Tex. Civ. App.-Beaumont 1975, nowrit). Lowery contains language to the contrary with respect to post-1974 orders and judg-ments. In addition, Lowery indicates that enforcement proceedings may be required to be inthe court that entered the order or judgment.

80. 545 S.W.2d 955 (Tex. 1977).81. Id. at 957-59.82. 556 S.W.2d 592 (Tex. Civ. App.-Dallas 1977).83. Id. at 594.

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tion of the domestic relations court was exclusive and the juvenilecourt was without power to hear the proceeding." The court resolvedthis question by stating:

[a parent-child relationship] as used in section 11.01(5) is limitedto a suit brought for determination of the legal right to access to achild, rather than a proceeding to enforce a right which currentlyexists under a previous court order. Thus, section 11.01(5) does notdeny jurisdiction to a court other than the domestic relations courtin which such suit is pending to entertain a writ of habeas corpus.15

The court went on to state that the Family Code was intended tolimit the scope of habeas corpus proceedings to the question ofwhether the party is entitled to possession under a court order or,by virtue of section 12.04. 36 On this reasoning, the Jabara court heldthat such habeas corpus proceedings were not suits affecting theparent-child relationship. 7 As a policy supporting this rule, thecourt recognized that limiting writs of habeas corpus to the court ofcontinuing jurisdiction would severely restrict the effectiveness ofthe remedy."8

II. VENUE AND TRANSFER OF SUITS AFFECTING THE PARENT-CHILD

RELATIONSHIP

A. County of Proper Venue

Title II of the Family Code, in addition to giving us completelynew concepts and law as to jurisdiction, has likewise vastly changedour venue rules and the methods for transfer. Under prior law, inwhich venue was governed by the general venue statutes, propervenue was generally in the county of the respondent's residence. Thewhereabouts or residence of the child was, in most cases, irrelevant.Now, however, the Code has appropriately placed more emphasis onthe child's residence.8 As a result, the parties' residence is of littleconsequence, except where a particular party's residence, as a mat-ter of law, also establishes the residence of the child. In determin-

84. Id. at 595.85. Id.86. Id. at 596; Smith, Commentary on Title 2, Texas Family Code Symposium, 5

TEX. TECH L. REV. 389, 435-36 (1974).87. Ex parte Jabara, 556 S.W.2d 592, 596 (Tex. Civ. App.-Dallas 1977).88. Id.89. TEX. FAMILY CODE ANN. § 11.04 (1975).90. TEX. FAMILY CODE ANN. § 11.04(c) (Supp. 1976-1977).

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ing the county of proper venue, therefore, the general rule is that aparent-child suit is maintained in the county where the child re-sides." Accordingly, a child's residence is the county where his par-ents reside, or if only one parent is living, the county where thatparent resides.2 There are, however, six exceptions to this generalrule. Specifically, a child may also reside in (1) the county wherethe custodian or managing conservator lives;93 (2) the county wherethe guardian of the person of the child resides, if no managing con-servator has been appointed; 4 (3) the county where the parent hav-ing care and control of the child resides, if the child's parents do notreside in the same county and no managing conservator or guardianof the person of the child has been appointed;95 (4) the county wherethe adult having care and control of the child resides, if the child isunder the care and control of an adult other than a parent and nomanaging conservator or guardian of the person of the child hasbeen appointed or, if appointed, their whereabouts are unknown, orthe person whose residence would otherwise determine the residenceof the child has left the child under the care and control of the adulthaving care and control of the child;9" (5) the county where theguardian or custodian appointed by any court of another state ornation resides;97 and (6) the county where the child is found, if itappears that the child is not under the care and control of anyadult. 8

While the six enumerated exceptions are those that generallyapply to parent-child suits, there are additional exceptions thatapply in particular suits involving children. For example, adoptionsuits, though they may be brought where the child resides, also haveproper venue where the petitioner resides, or where the authorizedagency is located, if one is involved. Accordingly, in suits affectingthe parent-child relationship that are ancillary to a suit for divorce,venue for the parent-child suit is in the same county that has propervenue in the suit for divorce, regardless of the county of the child'sresidence. 0 The effect of this provision is to require a .court having

91. TEX. FAMILY CODE ANN. § 11.04(a) (1975).92. TEX. FAMILY CODE ANN. § 11.04(c) (Supp. 1976-1977).93. TEX. FAMILY CODE ANN. § 11.04(c)(1) (Supp. 1976-1977).94. TEX. FAMILY CODE ANN. § 11.04(c)(2) (Supp. 1976-1977).95. TEX. FAMILY CODE ANN. § 11.04(c)(3) (Supp. 1976-1977).96. TEX. FAMILY CODE ANN. § 11.04(c)(4) (Supp. 1976-1977).97. TEX. FAMILY CODE ANN. § 11.04(c)(5) (Supp. 1976-1977).98. TEX. FAMILY CODE ANN. § 11.04(c)(6) (Supp. 1976-1977).99. TEX. FAMILY CODE ANN. § 11.04(b) (1975).100. See TEx. FAMILY CODE ANN. §§ 3.55(d), 11.06(d) (1975).

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continuing jurisdiction to transfer to the subsequent court where thesuit for the dissolution of the marriage was filed.'"' Finally, in pa-ternity suits venue is proper in the county where the mother or thealleged father resides. 02 If, however, jurisdiction was based on thenonresident jurisdiction provision of the Family Code, °3 venue liesin the petitioner's county of residence. °4 It is clear, however, thatthe venue provisions contained in the Family Code 10 5 with respectto parent-child suits are controlling over the general statutory venueprovisions. I

B. Transfer Provisions

Closely related to the venue provisions of the Family Code isthe statute dealing with transfers of parent-child suits. Transfers ofparent-child suits are governed by section 11.06 of the FamilyCode." 7 This statutory provision is the procedural vehicle by whichthe parent-child suit is moved from a county in which venue isimproper or inconvenient to the county where venue is proper, ormore convenient. The transfer of a parent-child suit has the effectof divesting the transferor court of jurisdiction and thus placingexclusive, continuing jurisdiction over the child in the transfereecourt.' "

The Code provides in certain situations, upon proper motion,for mandatory transfer. 09 In such a case the trial court is withoutdiscretion. Accordingly, there are three situations in which transferis mandatory upon proper motion. First, the court is required totransfer the suit where it is shown that the child's principal resi-dence has been in another county for at least six months."0 Second,where a suit for dissolution of the marriage has been filed in anothercourt the original court must transfer the proceeding to the courtwhere the suit for dissolution of the marriage is pending."' Last,

101. Id.102. TEX. FAMILY CODE ANN. § 13.41 (Supp. 1976-1977).103. TEX. FAMILY CODE ANN. § 11.051 (Supp. 1976-1977).104. TEX. FAMILY CODE ANN. § 13.41 (Supp. 1976-1977).105. TEX. FAMILY CODE ANN. § 11.04 (1975).106. TEX. REV. CIV. STAT. ANN. art. 1995 (1971). See Rogers v. Rogers, 536 S.W.2d 442

(Tex. Civ. App.-Houston [14th Dist.] 1976, no writ).107. TEX. FAMILY CODE ANN. § 11.06 (1975).108. TEX. FAMILY CODE ANN. § i1.06(a)-(b) (1975). See Smith, Commentary on Title 2,

Texas Family Code Symposium, 5 TEX. TECH L. REV. 389, 400 (1974).109. TEX. FAMILY CODE ANN. § 11.06(b) (1975).110. Id.Ill. Id.

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where a subsequent court acquires jurisdiction by reason of the erro-neous report of the Department of Human Resources that there wasno prior court of continuing jurisdiction, the court is required totransfer the proceeding to the subsequent court."2 In this final situa-tion, however, the court may make a motion to transfer sua sponteeven in the absence of a party's proper motion."'

In addition to mandatory transfers, certain circumstances per-mit discretionary transfers. When the issue is properly raised, thecourt, in its discretion, may transfer a parent-child suit to thecounty of proper venue."' Where the basis for a motion to transferis that the child resides in another county, but it is shown that thechild has not resided in that county for at least six months, transferis discretionary with the court." ' This provision allows some degreeof control over forum shopping by the custodial parent."' Likewise,the court may also exercise a discretionary transfer when, on mo-tion, a suit affecting the parent-child relationship is shown to bemore convenient in another county for the convenience of the partiesand witnesses and in the interest of justice."7

Just as the Family Code sets forth the situations in which trans-fers are mandatory or discretionary, it also addresses the person forwhom the transfer motion is available. Generally, upon the com-mencement of a new parent-child relationship, transfer is availableto any party other than the petitioner."' When a motion to modifyor a petition requesting further action is filed in a court havingcontinuing jurisdiction with respect to a child, however, transfer isavailable to any party."9 For example, assume that the DomesticRelations Court of Dallas County has continuing jurisdiction withrespect to matters affecting the parent-child relationship in connec-tion with a child (jurisdiction acquired as a result of the post-January 1, 1974, order or judgment). The mother now wishes toseek modification of the prior order or judgment. The mother andchild, however, have since changed their residence to Brazos

112. TEX. FAMILY CODE ANN. § 11.06(d) (1975). But see Counts v. Counts, 560 S.W.2d186 (Tex. Civ. App.-Dallas 1977) (report can be corrected).

113. Id.114. TEX. FAMILY CODE ANN. § li.06(b)-(c) (1975).115. TEX. FAMILY CODE ANN. § 11.06(b) (1975).116. Smith, Commentary on Title 2, Texas Family Code Symposium, 5 TEX. TECH L.

REV. 389, 401 (1974).117. TEX. FAMILY CODE ANN. § 11.06(c) (1975).118. TEX. FAMILY CODE ANN. § 11.06(a) (1975).119. TEX. FAMILY CODE ANN. § 11.06(b) (1975).

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County. The mother, therefore, must file her motion to modify inthe court of continuing jurisdiction in Dallas County, and include amotion to transfer the proceedings to Brazos County. Upon a show-ing that the child's residence has been changed to Brazos Countyfor at least six months, the Dallas court must transfer the proceed-ings to Brazos County. The Brazos County court then acquires andretains exclusive continuing jurisdiction with respect to the child.'

C. Procedure for Transfer

The procedure for transfer is also governed by the statuoryprovisions of the Family Code.', Under section 11.06 a "timelymotion" is a procedural prerequisite to transfer by a party. In orderto be "timely," a motion to transfer must be made "on or before thedate on which answer is required."'"1 2 Section 14.08 pertaining tomodification (as distinguished from original suits affecting parent-child relationship) does not seem to require an answer by the non-moving party. There remains a question, therefore, as to what con-stitutes a timely motion when the action is to modify a post-1974judgment. Also, the "timely motion" requirement does not apply totransfer proceedings from a court of continuing jurisdiction to an-other court that has acquired continuing jurisdiction over the childunder section 11.05(c) of the Family Code.2 3

While the statute clearly provides that a motion must betimely, it does not answer the question of whether or not the rulesof "due order of pleadings" apply. If due order of pleadings applies,the proponent of a motion to transfer would waive the right to trans-fer by preceding the motion to transfer with an answer.'24 A waiverof the motion could also possibly occur by the taking of any otheraction that invokes the jurisdiction of the court on matters notrequired for the resolution of the transfer issue. While the FamilyCode does not specifically address these problems, a transfer propo-nent would be well advised to see that a motion to transfer is raisedin the initial pleading.

After a motion to transfer is properly made, each party to thesuit is entitled to a hearing on the motion, and to ten days notice

120. Id.121. TEX. FAMILY CODE ANN. § 11.06 (1975).122. TEX. FAMILY CODE ANN. § 11.06(e) (1975).123. TEX. FAMILY CODE ANN. § 11.06(d)-(e) (1975).124. Westbrook v. Bradford, 429 S.W.2d 638, 639-40 (Tex. Civ. App.-Austin 1968, no

writ); See TEX. R. Civ. P. 84.

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thereof.-' The hearing on the motion to transfer must be held withinthirty days after the day of the filing (not the service) of the motionto transfer.'2" This provision, coupled with the ten days notice re-quirement, gives rise to some potential problems. For example, ifservice of notice of the hearing is not served upon a party untiltwenty-one days following the date of filing the motion to transfer,then only nine days remain until expiration of the stated thirty dayperiod in which the hearing must be held. Obviously, in this situa-tion, the court cannot comply with both provisions. If the courtallows the ten day notice, it cannot satisfy the requirement that thehearing be within thirty days of filing. On the other hand, if it hearsthe case within the thirty days, it has not given the non-movingparty ten days notice. In addition, if a movant is unable to serve aparty at all during the required thirty day time period, the questionarises as to whether the motion to transfer must be dismissed, orwhether the court can continue the time for hearing beyond thethirty days. Resolution of these problems depends on the court'sinterpretation and construction of the word "shall" as used inconnection with the thirty day requirement in the statute.'27 It issubmitted that in either of the foregoing situations, the court shouldbe permitted to extend the time for hearing beyond thirty days fromthe date of the filing of the motion. To interpret the provision asmandatory and thus require the movant to dismiss and re-file hismotion would seem not only unnecessarily burdensome, but alsowould probably be of no avail because of the requirement that themotion to transfer be "timely filed,"' 28 which is on or before answerday,' could not possibly be satisfied.

One final characteristic of the transfer proceeding should benoted. Only evidence pertaining to the question of venue may beconsidered at a transfer hearing. 13 Where the motion is based uponfacts requiring a mandatory transfer, the hearing should in mostcases be very perfunctory. For example, if in a new suit the basis ofthe motion is that the child has resided in another county for at leastsix months, it would seem that the transfer proponent need only tointroduce a certified copy of the judgment awarding custody or

125. TEX. FAMILY CODE ANN. § 11.06(g) (Supp. 1976-1977).126. Id.127. Id.128. TEX. FAMILY CODE ANN. § 11.06(a) (1975).129. TEX. FAMILY CODE ANN. § 11.06(e) (1975).130. Smith, Commentary on Title 2, Texas Family Code Symposium, 5 TEX. TECH L.

REV. 389, 402 (1974).

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managing conservatorship and then elicit testimony from thecustodian or managing conservator that he has maintained his prin-cipal residence in the other county for at least six months. Becausethe child's residence is that of the custodian or managing conserva-tor, the venue facts have been proven.'31 Moreover, where the mo-tion to transfer is filed so as to modify a prior order of a court ofcontinuing jurisdiction, then the court can judicially notice its ownorder of managing conservatorship and, therefore, the certified copyof the decree would not be required.

The machanics of a transfer are likewise quite simple. If a courttransfers a pending proceeding to another court, the transferringcourt must send its complete file with respect to all matters affect-ing the child to the proper court in the county to which the transferis made. 132 The file should include certified copies of all entries inthe court minutes, and a certified copy of any decree of dissolutionof marriage that was issued in a suit joined with a prior suit affectingthe parent-child relationship. If the transferring court retains juris-diction of another child who is a subject of the parent-child suit, thecourt then sends a complete copy of its file to the transferee court,and retains its original file.

D. Relief from Erroneous Ruling on Motion to Transfer

If a party properly files and proves his motion to transfer andthe court erroneously overrules that motion, the proponent probablyhas an alternative. This alternative is important because the FamilyCode specifically provides that an order transferring or refusing totransfer a parent-child suit is "not appealable."'34 Presumably, thisprovision means "not immediately appealable." If the court madean erroneous ruling on the transfer and thereafter an adverse rulingis reached on trial on the merits, the movant could surely perfectan appeal on the grounds of an erroneous ruling on the transfermotion. Moreover, based upon cases dealing with an erroneous over-ruling of a plea of privilege, it would appear that the erroneousoverruling of a mandatory transfer is reversible error.1' This proce-

131. TEX. FAMILY CODE ANN. § 11.04(c)(1) (1976-1977).

132. TEx. FAMILY CODE ANN. § 11.06(g) (Supp. 1976-1977).133. Id.134. TEx.FAMILY CODE ANN. § 11.06(f) (1975). See also Rogers v. Rogers, 536 S.W.2d

442 (Tex. Civ. App.-Houston [14th Dist.] 1976, no writ) (order refusing transfer not appeal-able); Benckenstein v. Benckenstein, 515 S.W.2d 336 (Tex. Civ. App.-Houston [14th Dist.]1974, writ dism'd) (order granting transfer not appealable).

135. Boney v. Boney, 458 S.W.2d 907 (Tex. 1970).

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PA RENT- CHILD RELATIONSHIP

dure effectively affords "two bites of the apple."As well as a potential appeal from a final adverse ruling, the

aggrieved movant may also have a possible remedy by writ of man-damus, at least where the transfer is mandatory. This conclusion isbased on the reasoning that since the act in question is a"mandatory" act, and because there is no right of immediate ap-peal,' 3 mandamus should be available.

III. CONCLUSION

It is submitted that the Family Code, in spite of some perplex-ing questions left unanswered by its provisions, provides a simpleand practical approach to the jurisdiction and venue problems in aparent-child suit where all parties reside in Texas. Accordingly,with some amendments to the Code by the Legislature and someclarification by the courts, these unique statutes will provide forsimple, appropriate, and easily understood rules as to jurisdictionand venue in suits affecting parent-child relationships.

136. TEX. FAMILY CODE ANN. § 1106(f) (Supp. 1976-1977).

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jurisdiction, venue, and transfers in suits affecting the

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