




NO








NO. 12-09-00017-CV
 
                         IN
THE COURT OF APPEALS
 
            TWELFTH
COURT OF APPEALS DISTRICT
 
                                      TYLER, TEXAS
 
 
                                                                             '     
IN RE: KLAAS HARM JESSE
KAMSTRA,
RELATOR                                                          '     ORIGINAL
PROCEEDING
 
                                                                             '      
 
 


MEMORANDUM
OPINION
            In
this original mandamus proceeding, Klaas Harm Jesse Kamstra, relator,
challenges certain portions of an order signed by the trial court on December
22, 2008 pursuant to the Texas Family Code and the Hague Convention.[1] 
Jesse requests a writ of mandamus (1) vacating the directive in the order that
he deposit $50,000 into a bank account for the benefit of Mava Lou Kamstra, the
real party in interest, (2) vacating the attorney’s fee award to Mava, (3)
vacating the denial of Jesse’s request for attorney’s fees, (4) enjoining any
attempt to enforce the vacated rulings, and (5) ordering that Jesse recover his
proved reasonable and necessary attorney’s fees and expenses or, alternatively,
directing the trial court to afford Jesse such recovery.  We conditionally
grant the petition in part and deny it in part.
                                                                              
Background
            Jesse,
a citizen of the Netherlands, and Mava, a citizen of the United States, were
married on May 10, 1995.  They are the parents of a daughter born on March 18,
1997, and a son born on May 10, 1998.  At the time the children were born,
Jesse and Mava lived in Tanzania, Africa.  However, Mava traveled to Holland
for each birth.  Thus, the children are citizens of the Netherlands, and they are
also citizens of the United States.  However, it was undisputed in the trial
court that the children have lived their entire lives in Africa.
            After
living in Tanzania for approximately ten years, the family moved to Burundi,
Africa, in either June or August 2007.  In August 2008, Mava and the children
made their annual visit to Longview, Texas, to visit Mava’s parents.  They were
scheduled to return to Burundi on September 7, 2008.  Two or three days before
their scheduled return date, Mava notified Jesse that, due to her father’s ill
health, she and the children would not return to Burundi at that time and that she
intended to enroll the children in school in Longview.  She told Jesse that she
would stay for another three months, or at least until Christmas, and then
return to Burundi.  Subsequently, Jesse and Mava communicated, primarily by
email, regarding the status of their relationship and arrangements for Jesse to
communicate with and visit the children.
            On
October 17, 2008, Mava informed Jesse by email that she and the children would
stay in Longview “indefinitely.”  Approximately one week later, and without
Jesse’s knowledge, Mava filed a divorce and child custody action in Gregg
County, Texas (the “Gregg County action”).  In her original petition, she
alleged that she had been domiciled in Texas for the preceding six months and a
resident of Gregg County for the preceding ninety days.  On November 3, 2008,
Jesse arrived in Longview “to try to see if [they] could mend the marriage” and
“for the sole purpose of seeing [his] kids and hoping to arrange that they . .
. would come back . . . before Christmas.”  Soon after his arrival, Jesse was
served with a copy of the original petition in the Gregg County action and a
temporary restraining order.  Shortly thereafter, Jesse retained an attorney to
represent him in the Gregg County action and later retained an attorney in
Burundi to initiate divorce and child custody proceedings there.
            Jesse
filed a special appearance in the Gregg County action, asserting that the trial
court did not have jurisdiction over him, and a plea to the jurisdiction urging
that the trial court did not have jurisdiction of the child custody action.  He
alleged further that Burundi was the children’s “home state.”  He also filed an
original answer in which he alleged that Mava had engaged in parental and
international kidnapping and asked that the trial court enter orders for the
return of the children to 

 class=Section2>

their “home
state” of Burundi.  In a later filed supplemental pleading, Jesse specifically
sought relief under the Convention on the Civil Aspects of International Child
Abduction (the “Hague Convention” or the “Convention”) and the International
Child Abduction Remedies Act (“ICARA”).[2] 
He alleged in that pleading that Burundi was the children’s “habitual
residence.”
            After
an evidentiary hearing, the trial court entered temporary orders pertaining to
the children.  Approximately one month later, the trial court conducted another
evidentiary hearing.  By the date of the second hearing, Jesse’s Burundi
attorney had filed a divorce and child custody action, and the Burundi court
had set a hearing for January 26, 2009.  The custody of the children and
visitation were among the issues to be addressed at the hearing.
            At
the second evidentiary hearing, Jesse maintained that the Hague Convention
applied to the case.  Specifically, his counsel argued as follows:
 
                We’ve determined that the law of
Holland will apply in Burundi, and the law of Holland includes that they are a
signatory to The Hague Convention which would invoke The Hague Convention into
this matter.  And that unless this Court finds that the return of the children
would violate the fundamental principles of the United States regarding
protection of human rights and fundamental freedoms, the Court should return
the children to Burundi for determination there under The Hague Convention.
 
Burundi is not a
signatory to the Hague Convention, and therefore Mava’s counsel disagreed with
this argument initially.  Ultimately, however, he stipulated that the Hague
Convention applied.  At the conclusion of the hearing, the trial court ruled
from the bench and signed a written order on December 22, 2008 memorializing
its ruling.  The order includes certain emergency orders (collectively the
“emergency orders”) “under Texas Family Code 152.204 (Temporary Emergency
Jurisdiction) and the Hague Convention since the children have been abducted to
this state[.] . . .”  These emergency orders direct, in part, that Jesse
deposit $50,000 in a “neutral bank in the area” for Mava to withdraw by order
of the trial court “for the purpose of attorney’s fees in Burundi, for travel,
for visits, or for court or anything else she needs to prosecute–to reasonably
prosecute or defend herself in the divorce or the custody action in Burundi.” 
The emergency orders also direct Jesse to pay $15,000 toward Mava’s attorney’s
fees.  However, Mava is not ordered to pay any portion of Jesse’s attorney’s
fees.[3]

            At
Jesse’s request, the trial court filed findings of fact and conclusions of
law.  After depositing $50,000 in compliance with the trial court’s order,
Jesse filed this original proceeding challenging the emergency orders.  On
Jesse’s motion, we stayed the trial court’s disbursement of funds to Mava until
our decision on the merits in this proceeding.  After oral argument and
additional review, we ordered further briefing on the following issues
pertaining to the trial court’s jurisdiction:
 
1.  What authority supports a conclusion that the Hague
Convention is applicable here?
 
                                2.  What
authority supports a conclusion that counsels’ agreement, admission, or
stipulation regarding the applicability of the Hague Commission was binding on
the trial court and is binding on this Court?
 
                                3.  If
the Hague Convention is not applicable here, how should this Court proceed?
                                             Prerequisites to Mandamus
            A
writ of mandamus will issue to correct a clear abuse of discretion when there
is no adequate remedy by appeal.  In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer,
827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding).  A trial court abuses its
discretion if it reaches a decision so arbitrary and unreasonable as to amount
to a clear and prejudicial error of law or if it clearly fails to correctly
analyze or apply the law.  Walker, 827 S.W.2d at 839-40.  Under
this standard, the trial court has no discretion in determining what the law is
or in applying the law to the facts.  Walker, 827 S.W.2d at 840. 
Thus, a clear failure by the trial court to analyze or apply the law correctly
constitutes an abuse of discretion.  Id. 
            With
respect to factual issues or matters committed to the trial court’s discretion,
the reviewing court may not substitute its judgment for that of the trial
court.  Id. at 839.  Therefore, the relator must establish that
the trial court could reasonably have reached only one decision.  Id.
at 840.
            An
appellate remedy is “adequate” when any benefits to mandamus review are
outweighed by the detriments.  In re Prudential, 148 S.W.3d at
136.  However, mandamus is proper, without a showing of the inadequacy of
appeal, if a trial court issues a void order.  In re Sw. Bell Tel. Co.,
35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).  An order that the court had
no power or jurisdiction to enter is void.  Urbish v. 127th Judicial
Dist. Court, 708 S.W.2d 429, 431 (Tex. 1986) (orig. proceeding).
            When
there are questions of fact, or mixed questions of law and fact, such as the
determination of a child’s habitual residence, upon which the right to assume
jurisdiction depends and upon which it is the duty of the trial court to pass
judicially, then there is jurisdiction to decide those questions.  Qwest
Microwave, Inc. v. Bedard, 756 S.W.2d 426, 433 (Tex. App.–Dallas 1988,
no writ), disapproved on other grounds by Palmer v. Coble Wall Trust Co.,
851 S.W.2d 178, 182 (Tex. 1992).  If that discretion is erroneously exercised,
it can be corrected only by appeal or error, and not by mandamus.  Id. 
A different situation is presented where the want of jurisdiction appears
affirmatively on the face of the record or is otherwise clear as a matter of
law.  Id.  In such a case, mandamus will issue to remedy an
unauthorized assumption of jurisdiction.  Id.  
 
Jurisdictional Issues
            As
mentioned previously, we requested postsubmission briefing on issues relating
to the trial court’s jurisdiction in this case.  In response, the parties
readily acknowledged that their stipulation regarding the applicability of the
Hague Convention could not confer subject matter jurisdiction where none
existed.  Jesse contends, however, that the trial court had jurisdiction under
the Hague Convention or, alternatively, under section 152.204 of the Texas
Family Code.  According to the recitations in its order, the trial court relied
on both as jurisdictional grounds for issuing the emergency orders. 
            Jesse
argues further that because the trial court properly assumed jurisdiction under
either the Hague Convention or section 152.204, he can recover his attorney’s
fees and other expenses from Mava.  See 42 U.S.C.A. § 11607(b)
(petitioner’s expenses recoverable from respondent in Hague Convention case
where child returned unless respondent establishes that such order would be
“clearly inappropriate”); Tex. Fam. Code
Ann. § 152.312(a) (Vernon 2008) (prevailing party’s expenses recoverable
from nonprevailing party under the UCCJEA[4]
unless the party from whom fees are sought establishes that such award would be
“clearly inappropriate”).  He also maintains that no authority exists to
support the trial court’s awards to Mava.  More particularly, Jesse contends
that the trial court exceeded its jurisdiction when it issued the emergency
orders. Although Mava disagrees with Jesse’s challenges to the substance of the
emergency orders, she adopts Jesse’s arguments regarding the grounds for the
trial court’s jurisdiction. 
            Despite
the additional briefing provided by the parties, our concerns about the trial
court’s jurisdiction remain.  Accordingly, we first address the trial court’s
jurisdiction.
The Hague Convention
            In
1980, the Hague Conference on Private International Law drafted the Hague
Convention on Child Abduction “to protect children internationally from the
harmful effects of their wrongful removal or retention and to establish
procedures to ensure their prompt return to the State of their habitual
residence, as well as to secure protection for rights of access.”  See
Hague Convention, Preamble, 51 Fed. Reg. 10494 (March 1986).  Other purposes of
the Convention include “[restoring] the pre-abduction status quo and
[deterring] parents from crossing borders in search of a more sympathetic
court.”  Robert v. Tesson, 507 F.3d 981, 988 (6th Cir.
2007).
            The
United States Senate ratified the Hague Convention on April 29, 1988, and
became a “Contracting State” on July 1, 1988.[5] 
See Exec. Order No. 12,648, 53 Fed. Reg. 30637 (Aug. 11, 1988).  That
same year, the United States Congress implemented the Convention by enacting
ICARA.  See 42 U.S.C.A. §§ 11601-11611.  This act gives concurrent
jurisdiction to federal district courts and state courts to hear cases arising
under the Convention.  See 42 U.S.C.A. § 11603(a).  It also establishes
the procedure by which a parent can petition for the return of a child who has
been wrongfully removed from the child’s habitual residence to the United
States.  See 42 U.S.C.A. § 11603(b). 
            The
Convention is based on the principle that the country of the child’s habitual
residence is best suited to determine questions of child custody and access.  In
re J.G., 2009 WL 3838859, at *2 (Tex. App.–Dallas 2009, no pet.).   Consequently, in a wrongful
removal action, the court has the authority to determine the merits of a
wrongful abduction claim, but not the merits of the underlying custody claim.  See
England v. England, 234 F.3d 268, 271 (5th Cir. 2000) (“[T]he
[Hague] Convention prohibits courts considering Convention petitions from
‘adjudicating the merits of [the] underlying custody dispute[s].’”) (citations
omitted)); see also Hague Convention, Ch. III, Art. 19 (“A decision
under this Convention concerning the return of the child shall not be taken to
be a determination on the merits of any custody issue.”).
            The
Convention applies to any child under the age of sixteen years who was
“habitually resident in a Contracting State immediately before any breach of
custody or access rights.”[6] 
See Hague Convention, Ch. I, Art. 4; see also 42 U.S.C.A.
§ 11603(e)(1)(A).  When a child has been habitually resident in a
nonsignatory country or is taken to a nonsignatory country, the Hague
Convention does not apply.  See, e.g., Taveras v. Taveras,
397 F. Supp. 2d 908, 912 (E.D. Ohio 2005), aff’d, 477 F.3d 767 (6th Cir.
2007) (stating that when a child is taken from a nonsignatory country and
retained in a signatory country, it is “well-settled” that there is no remedy
because the terms of the Convention are applicable only to those countries who
signed the Convention and thereby agreed to abide by its terms); Mohsen
v. Mohsen, 715 F.Supp. 1063, 1065 (D. Wyo. 1989) (holding that
petitioner seeking return of a child habitually resident in Bahrain, a
nonsignatory country, is not entitled to seek redress under the Hague
Convention).  Nevertheless, Jesse argues that the Hague Convention applies in
this case. 
Intent
            To
support his position, Jesse first discusses several cases that address the
factors to be considered when determining a child’s habitual residence.  He
points out that he and his children “purposed to remain Dutch citizens, had a
life to go back to in the Netherlands, and were in Burundi as missionaries.” 
He recounts the educational opportunities for his children in Europe as a
result of their Dutch citizenship and mentions that they were able to enter the
United States without a visa because they were Dutch citizens.  Finally, he
urges that “[t]he fact that they resided in Burundi should not be a stumbling
block to a finding that they remained under Dutch law and enjoyed the
protections of Dutch law even while performing missionary work in Burundi.”
            We
first note that the Hague Convention expressly provides that “[t]his Convention
shall apply as between Contracting States. . . .”  Hague Convention, Ch. V,
Art. 35.  Moreover, the Convention applies only to a child who is under sixteen
years of age and who was “habitually resident in a Contracting State
immediately before any breach of custody or access rights.”  Hague Convention,
Ch. I, Art. 4.  And the express language of the Convention does not include any
requirement that the citizenship of a parent or a child be considered in
determining the applicability of the Convention to a particular case. 
Therefore, under the plain, unambiguous language of the Convention, its
administrative and judicial mechanisms apply only when the country to which the
child is abducted and the country from which the child is taken are parties to
the Convention.  United States v. Amer, 110 F.3d 873, 881 (2nd
Cir. 1997); Taveras, 397 F. Supp. 2d at 911-12; Mezo v.
Elmergawi, 855 F. Supp. 59, 62 (E.D. N.Y. 1994). 
            Jesse
reminds us, however, that “habitual residence” is not defined in the
Convention.  He further asserts that the Convention’s drafters intended the
term to be applied to the facts and circumstances of each case in a
nontechnical manner.  See Friedrich v. Friedrich, 983 F.2d 1396,
1401 (6th Cir. 1993).  Consequently, he cautions us against taking a “rigid
stance” when addressing a child’s “habitual residence.”   He also refers us to
the following statements relating to the relevance of parental intent in
determining “habitual residence”:
 
It is quite possible to participate in all the
activities of daily life while still retaining awareness that one has another
life to go back to.  In such instances one may be “acclimatized” in the sense
of being well-adjusted in one’s present environment, yet not regard that
environment as one’s habitual residence.
 
See Mozes
v. Mozes, 239 F.3d 1067, 1079 (9th Cir. 2001).  According to Jesse, these
statements describe his situation.
            We
interpret Jesse’s argument as a suggestion that his children’s “habitual
residence” is the Netherlands, not Burundi, because he and the children intend
to return to the Netherlands in the future.  However, he did not make this
assertion in the trial court.  Instead, he alleged in his supplemental pleading
that Burundi was the children’s “habitual residence.”  Further, he testified that
the children had been in Africa all of their lives and had lived in Burundi for
approximately one year before traveling to Longview in 2008.  Jesse also discussed
the children’s future educational opportunities as a result of their Dutch
citizenship, and referred to those opportunities as being available “at any
university in Europe.” Additionally, he mentioned their return trips to visit
family in the Netherlands.  However, there was no testimony relating to Jesse’s
intent, or the children’s intent, to return to the Netherlands permanently.  Accordingly,
the trial court implicitly found that Burundi was the children’s habitual
residence.  The record shows that the underlying facts were undisputed, and we
conclude that the trial court correctly applied the law in determining that the
children’s habitual residence was Burundi.  Therefore, Jesse’s argument to the
contrary is without merit. 
Citizenship
            Jesse
argues further that denying him the protections of the Hague Convention
“ignores the plain language of Article 25 [of the Convention] and its proviso
that it apply to nationals of contracting states, such as [Jesse].”  
Chapter
V, Article 25 of the Convention states as follows:
     Nationals of the Contracting States and persons
who are habitually resident within those States shall be entitled in matters
concerned with the application of this Convention to legal aid and advice in
any other Contracting State on the same conditions as if they themselves were
nationals of and habitually resident in that State.
 
Jesse cites no
authority supporting his interpretation of Article 25, nor are we aware of any
such authority.  Moreover, we were unable to locate any cases interpreting this
Article.  However, we have reviewed the explanatory report of Elisa Perez-Vera,
the official Hague Conference reporter, which is “recognized by the Conference
as the official history and commentary on the meaning of the provisions of the
Convention available to all States becoming parties to it.”  Hague
International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg.
10494, 10503 (Mar. 26, 1986).  This resource provides helpful insight into the
meaning of Article 25.
            The
Convention requires each contracting state to designate a “Central Authority”
to discharge the duties imposed by the Convention upon such authorities.  Hague
Convention, Ch. II, Art. 6.  “Central Authorities” are required to take all
appropriate measures to secure the prompt return of children and to achieve the
other objects of the Convention.  Hague Convention, Ch. II, Art. 7.  This includes,
where the circumstances so require, providing or facilitating the provision of
legal aid and advice, including the participation of legal counsel and
advisers.  Hague Convention, Ch. II, Art. 7(g).  The Perez-Vera report explains
that 
 
[w]hen it is necessary, in order to obtain the child’s
return, for the judicial or administrative authorities of the State in which it
is located to intervene, the Central Authority must itself initiate proceedings
(if that can be done under its internal law) or facilitate the institution of
proceedings.  This duty also extends to proceedings which prove to be necessary
for organizing or securing the effective exercise of rights of access. 
. . . .
 
Where the Central Authority is not able to apply
directly to the competent authorities in its own State, it must provide or
facilitate the provision of legal aid and advice for the applicant, in terms of
[A]rticle 25 ([Ch. II, Art. 7,] sub-paragraph g).  It is appropriate to point
out here very briefly that the phrase ‘where the circumstances so require’ in
this sub-paragraph refers to the applicant’s lack of economic resources, as
determined by the criteria laid down by the law of the State in which such
assistance is sought, and that it does not therefore refer to abstract
considerations as to the convenience or otherwise of granting legal aid.
 
Eliza
Perez-Vera, Hague Conference on Private International Law, paras.
95-96, p. 40 (1982), available at http://www.hiltonhouse.com/articles/Perez_rpt.txt. 
As to Article 25, the Perez-Vera report states that
 
[t]he relevant provision here enlarges the scope of
legal aid in two respects.  Firstly,  it includes among the possible
beneficiaries persons habitually resident in a Contracting State as well as
that State’s own nationals.  Secondly, the legal aid available is extended to
cover legal advice as well, which is not invariably included in the various
systems of legal aid operated by States.
 
Id.,
para. 133, p. 52.
            Another
source of information is the Office of Children’s Issues, which acts as the
Central Authority for the United States.  In its analysis of the Convention,
the Office states that “Article 25 provides for the extension of legal aid and
advice to foreign applicants on the same basis and subject only to the same
eligibility requirements as for nationals of the country in which that aid is
sought.”[7] 
International Child Abduction, Office of Children’s Issues, United States
Department of State, The Hague Convention on the Civil Aspects of International Child Abduction, http//travel.state.gov/pdf/Legal_Analysis_of_the_Convention.pdf
(last visited Feb. 25, 2010).  This is consistent with the information in the
Perez-Vela report.
            The
above information, read  together with Article 25, supports a conclusion that
the legal aid contemplated by Article 25 is that necessary to facilitate an
applicant’s request for relief under the Hague Convention when a Central
Authority cannot apply directly for the child’s return.  We have been unable to
locate any authority to suggest that Article 25 creates an exception to the
limited application of the Convention as stated in Chapter I, Article 4. 
Accordingly, we cannot agree with Jesse’s construction of Article 25.
            Finally,
Jesse cites a case involving a jurisdictional dispute between Texas and
California.  The dispute arose from a California custody order and a subsequent
custody dispute between an American citizen and a Chilean citizen, both of whom
were living in the United States.  See Saavedra v. Schmidt, 96
S.W.3d 533, 535-36 (Tex. App.–Austin 2002, no pet.).  The Texas court relied,
in part, on the Hague Convention for exercising jurisdiction and cited the
Convention in refusing to enforce the California court’s custody
determination.  Id. at 542.  In choosing to apply the Convention,
the trial court relied on a prior California order in which the parties agreed
to be bound by the Convention.  Id.  The Austin court of appeals
held that despite the parties’ agreement, the Convention did not govern the
jurisdictional dispute between the two states.  Id. at 543.  The
court also stated that
 
the parties presumably entered into this agreement
because Saavedra is a citizen of Chile.  If the controversy here were
international in nature, there is no dispute that the parties would be bound by
the Convention with or without their agreement, as Chile is a signatory to the
Convention.
 
Id.
at 542 n.13.  Jesse emphasizes that “in making this pronouncement, the court
focused not on the residence, but the citizenship, of the parents.”  However,
this statement is dicta, and is unsupported by authority or analysis. 
Therefore, we do not find it persuasive.
Conclusion
            We
have carefully considered Jesse’s arguments and authorities and are not
unsympathetic to his circumstances.  But based upon the foregoing analysis, we
are persuaded that the Hague Convention is not applicable to this case. 
Therefore, we hold that the Hague Convention did not provide the trial court
with subject matter jurisdiction to enter the emergency orders.
 
Temporary Emergency Jurisdiction
            Jesse
argues, in the alternative, that the trial court had temporary emergency
jurisdiction under Texas Family Code section 152.204.  A trial court has
temporary emergency jurisdiction if a child is present in this state and has
been abandoned or it is necessary in an emergency to protect the child because
the child, or a sibling or parent of the child, is subjected to or threatened
with mistreatment or abuse.  Tex. Family
Code Ann. § 152.204(a) (Vernon 2008).  As such, temporary emergency
jurisdiction is reserved for extraordinary circumstances.  Saavedra,
96 S.W.3d at 545.
            There
is nothing in the record before us that supports the trial court’s exercise of
temporary emergency jurisdiction under section 152.204.  There was no evidence
that the children had been abandoned, or that either Mava or the children had
been subjected to or threatened with mistreatment or abuse.  Accordingly, we
hold that section 152.204 did not provide the subject matter jurisdiction
necessary for the trial court to enter the emergency orders.
Conclusion
            The
trial court cited Texas Family Code section 152.204 and the Hague Convention as
grounds for its exercise of jurisdiction to enter the emergency orders.  However,
we have held that neither provides the subject matter jurisdiction necessary
for the trial court to issue the orders.  Therefore, the emergency orders are
void, and constitute an abuse of the trial court’s discretion.  Because the
orders are void, we do not address whether appeal is an adequate remedy. 
Accordingly, we conditionally grant the writ of mandamus as to the emergency
orders.  Based upon the trial court’s lack of jurisdiction, we deny the
petition as to Jesse’s request for an order that he recover his attorney’s
fees.  Jesse has not shown that he is entitled to the injunction he has
requested.  Therefore, his request for an injunction is overruled.  We are
confident that, within fifteen days of this opinion and order, the respondent
will issue an order vacating the emergency orders insofar as they pertain to
the $50,000 deposit for Mava’s benefit, the award of Mava’s attorney’s fees,
and the denial of Jesse’s attorney’s fees, and directing that the $50,000
deposit be disbursed to Jesse.  The writ will issue only if she fails to do so.[8] 
Our stay is lifted.           
 
                                                                                                    
BRIAN HOYLE__    
                                                                                                             
Justice
 
Opinion delivered March 2, 2010.
Panel consisted of
Worthen, C.J., Griffith, J., and Hoyle, J.
 
 
 
(PUBLISH)
 




       [1]  The respondent
is the Honorable Robin D. Sage, Judge of the 307th Judicial District Court,
Gregg County, Texas.


       [2]  Convention on
the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No.
11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10494 (March
26, 1986); International Child Abduction Remedies Act, 42 U.S.C.A. §§
11601–11611 (West 2005).
 


        [3]  On the same day,
the trial court signed an order dismissing the divorce action.  Specifically,
the trial court found that it lacked jurisdiction of the divorce action because
Mava had not been a domiciliary of the State of Texas for the preceding six
months or a resident of Gregg County for the preceding ninety days.  The order
included an additional recitation that the trial court declined the divorce action
because Gregg County was not a convenient forum, that all matters can be tried
in Burundi, “and for ‘judicial economy.’”  Jesse does not challenge any portion
of this order.


       [4]  The Uniform
Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) was designed, in
large part, to clarify and to unify the standards for courts’ continuing and
modification jurisdiction in interstate child custody matters.  In re
Forlenza, 140 S.W.3d 373, 374 (Tex. 2004) (orig. proceeding).  Section
152.204 is part of the UCCJEA.  See
Tex. Fam. Code Ann. § 152.001-.317 (Vernon  2008).  The UCCJEA provides
that “[a] court of this state shall treat a foreign country as if it were a
state of the United States for the purpose of applying . . . Subchapter C[,
which includes section 152.204].”  See Tex.
Fam. Code Ann. § 152.105(a) (Vernon 2008).  
 


       [5]  States ratify
the Convention by adopting it in accordance with local law and depositing
evidence of the ratification with the Ministry of Foreign Affairs in the
Netherlands.  Hague Convention, Ch. VI, Art. 37.  Because the Hague Convention
is an international treaty and was ratified by the Senate, it is the “supreme
law of the land.”  U.S. Const. Art.
VI (Supremacy Clause). 


       [6]  The Hague
Convention uses the term “Contracting State.”  Because of the international
scope of the Convention, the term “state” refers to “country.”  See Saavedra
v. Schmidt, 96 S.W.3d 533, 543 n.14 (Tex. App.–Austin 2002, no pet.).


       [7]  As an aside, we
note that in its analysis of the Convention, but not Article 25 specifically,
the Office of Children’s Issues relies heavily on the Perez-Vela report.


       [8]  The unchallenged
portion of the trial court’s December 22, 2008 order relates to the children. 
As noted earlier, a hearing was scheduled in Burundi for January 26, 2009 to
address custody and visitation.  We have no information that causes us to
conclude these issues have not been resolved by the Burundi court. 


