Imagine the following scenario. A mother and father have a child together in another state. The mother moves to Texas for work, and both parents agree that the child should stay with her. After a few months, the parents decide that they cannot make the long-distance arrangement work. The father files for divorce in Texas, asking the court to address child custody. The parents extensively litigate the entire proceeding, and the trial court issues a final judgment.

A few years later, however, the father decides to challenge that judgment. He does not try to modify the original custody arrangement because of changed circumstances. Instead, he files a new suit, arguing that the case should have not been brought in Texas because it was not the child's home state. And he goes one step further: He asserts that, because Texas was the wrong place for the suit, the trial court lacked subject matter jurisdiction—that is, the power to hear and decide the case. Thus, he contends, the judgment is void, and he may challenge it at any time, even though he chose to file suit in Texas in the first place.

This term, in In re D.S., the Texas Supreme Court was presented with a similar issue. The Uniform Law Commission drafted the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) as model legislation to help ensure that custody determinations are made in the state that can best decide the case in the interest of the child. Like almost every other state, the Texas Legislature has adopted the UCCJEA, codifying it as chapter 152 of the Family Code. Under section 152.201, a Texas court "has jurisdiction to make an initial child custody determination" when Texas is the child's home state on the date the proceeding commences, along with a few other requirements. In re D.S. dealt specifically with this section.

In that case, the parties had a child together in Massachusetts. A few months later, Mother moved to Texas, and the child split time between both states. Mother filed for divorce in Texas when the child was 8 months old. As part of that proceeding, Father signed an affidavit voluntarily relinquishing his parental rights to the child. After considering the evidence, the trial court found that it had jurisdiction over the proceeding and the parties and that no other court had continuing, exclusive jurisdiction over the child—just as the UCCJEA requires. The trial court subsequently terminated Father's parental rights, and he did not appeal.

Six months later, Father filed a bill-of-review suit, seeking to set aside the termination order. In this collateral attack, Father asserted that, under section 152.201, the trial court lacked subject matter jurisdiction over the proceeding because Texas was not the child's home state, thereby rendering the termination order void. The Texas Supreme Court ultimately resolved this case under another chapter of the Family Code, holding that section 161.211(c) barred Father's collateral attack, as the issue he raised did not relate to fraud, duress or coercion in the execution of his affidavit—the only challenges permitted under the statute.

A three-justice concurrence joined the majority but also addressed Father's argument that lack of "jurisdiction" under the UCCJEA equates to lack of subject matter jurisdiction. The Court had not analyzed that issue before, but it is an important one. After all, finality is of utmost significance in child custody determinations. If the UCCJEA's "jurisdiction" requirements define a trial court's subject matter jurisdiction, then an error regarding those requirements renders the judgment void, potentially opening up innumerable judgments to future collateral attacks.

To resolve this issue, the concurrence analyzed the UCCJEA's text, noting that the modern jurisprudential trend is to interpret a statute as implicating subject matter jurisdiction only if there is clear legislative intent to that effect. The concurrence emphasized that the UCCJEA is concerned with where the suit should be litigated, not with whether a court has the authority to adjudicate the type of controversy. Further, the UCCJEA states that a court with "jurisdiction" under the statute may decline to exercise that jurisdiction, if another state is a more convenient forum, and one factor a court considers in making that determination is whether the parties agree which state should assume jurisdiction. That suggests that the UCCJEA does not relate to a court's power to hear and decide a case, as subject matter jurisdiction cannot be conferred upon a court by consent or waiver. Based on these factors, the concurrence concluded that lack of "jurisdiction" under the UCCJEA does not equate to lack of subject matter jurisdiction. So, even if the trial court had erroneously applied the UCCJEA's "jurisdiction" requirements, that error did not render the judgment void—or subject it to collateral attack.

Despite the UCCJEA's goal of national uniformity, this issue remains unsettled. While some states agree with the concurrence, others have disagreed. The model UCCJEA does not resolve this debate, either. In comments accompanying the portion of the UCCJEA that section 152.201 replicates, the Uniform Law Commission states that "jurisdiction to make a child custody determination is subject matter jurisdiction." But that section of the model UCCJEA—like section 152.201—omits the words "subject matter" in front of "jurisdiction." The position taken in the UCCJEA's comments is further undercut by the fact that a court's determination of "jurisdiction" under the model UCCJEA includes the parties' convenience and consent—factors normally irreconcilable with subject matter jurisdiction.

The commission drafted the UCCJEA and its accompanying comments over 20 years ago, and significant disagreement on this issue remains. Still, the concurrence indicates that Texas jurisprudence supports adopting an interpretation that strengthens the finality of child custody determinations, and practitioners should follow how this debate plays out across the country.

Justice Debra H. Lehrmann has served on the Supreme Court of Texas since 2010. Prior to her appointment to the Court, she was a family law trial judge in Tarrant County for 23 years.