Affirmed and Opinion filed July 2, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00454-CV

JUMANA M. BARABARAWI, Appellant

V.

MAHAER ABU RAYYAN, Appellee

On Appeal from the 312th District Court

Harris County, Texas

Trial Court Cause No. 2009-74023

O P I N I O N

The question in this case is whether the trial court properly exercised

jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act 

(“UCCJEA”). See Tex. Fam. Code §§ 152.001–.317. We conclude that it did and 

affirm the trial court’s judgment.
2

BACKGROUND

The parents in this child custody dispute are Jumana M. Barabarawi 

(“Mother”) and Mahaer Abu Rayyan (“Father”).

1 Both are United States citizens 

and practicing Muslims. In 2003, the couple traveled to the West Bank to be 

married in accordance with their religious customs. After the ceremony, they

returned to Houston and conceived a son, who was born here in 2004.

The family returned to the West Bank in June 2007, shortly before the child 

turned three. Once overseas, Father divorced Mother in a Sharia court. Mother 

retained custody of the child, and Father returned to Houston by himself. 

According to Mother, Father obtained an order forbidding her from leaving the 

region without his permission. Mother testified that because of this order, she was 

turned away when she attempted her exit from the West Bank. With some help, 

Mother was eventually able to leave the region and fly back to the United States 

with her son. They resettled in Orlando, Florida in July 2009.

Father learned that Mother and child had been living in Florida less than four 

months after their return. In November 2009, Father filed suit in Texas state court, 

seeking primary custody of his son. Mother disputed whether the trial court had 

jurisdiction. In the alternative, she also argued that the trial court should decline 

jurisdiction because Texas is an inconvenient forum and because Father engaged in 

unjustifiable conduct. The trial court rejected Mother’s challenges and determined 

that it had jurisdiction under a default provision in the UCCJEA. After a trial on 

the merits, the trial court named both parents as joint managing conservators. 

Father received primary custody of the child and Mother was ordered to pay child 

support. This appeal ensued.

 

1 We adopt the spelling used in the Notice of Appeal. We note, however, that Mother’s 

name is more frequently spelled in the record as either “Barbarwi” or “Barbarawi.”
3

PARTIAL REPORTER’S RECORD

Before proceeding to the merits of this case, we first address Father’s 

objection that Mother failed to comply with the Texas Rules of Appellate 

Procedure. The objection pertains to Mother’s designation of a partial reporter’s 

record. Under Rule 34.6, when the appellant requests a partial record, she “must 

include in the request a statement of the points or issues to be presented on 

appeal.” See Tex. R. App. P. 34.6(c)(1). The rule states further that we, as the 

reviewing court, must presume that the partial record designated by the appellant

“constitutes the entire record for purposes of reviewing the stated points or issues.” 

See Tex. R. App. P. 34.6(c)(4). In this case, Mother requested the transcripts from 

two pretrial hearings, but not the trial itself. Father contends that the presumption 

of completeness should not apply because Mother entirely neglected to file a 

statement of points or issues. Father argues next that we should uphold the trial 

court’s exercise of jurisdiction, citing the common law presumption that all 

omitted portions from the record support the trial court’s judgment. See W&F 

Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 38 (Tex. App.—Houston [14th Dist.] 

2006, no pet.); Mason v. Our Lady Star of Sea Catholic Church, 154 S.W.3d 816, 

819 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

Father misstates the record when he asserts that Mother “did not produce a 

statement of issues.” After filing her Notice of Appeal, Mother sent a letter to 

Father and this court “to clarify [her] position regarding [her] request for the court 

reporter’s transcript.” In her letter, Mother stated that she had not requested the 

transcript from the trial on the merits because she was “only appealing 

jurisdictional issues which were considered prior to trial.” This letter completely

apprised Father of the points or issues Mother was raising on appeal.
4

To comply with the rest of Rule 34.6, Mother was also required to file her 

statement of issues “[a]t or before the time for perfecting the appeal.” See Tex. R. 

App. P. 34.6(b)(1). Mother submitted her letter approximately one month after 

filing her Notice of Appeal. Although the statement was untimely, Mother’s

tardiness does not necessarily foreclose appellate review. In Bennett v. Cochran, 

the supreme court held that when a statement of issues is filed late, courts should 

not apply Rule 34.6 to deny review on the merits unless the appellee has 

established that he was harmed by the untimely statement. See Bennett v. Cochran, 

96 S.W.3d 227, 229–30 (Tex. 2002) (per curiam) (reiterating the “commitment to 

ensuring that courts do not unfairly apply the rules of appellate procedure to avoid 

addressing a party’s meritorious claim”). The supreme court “relaxed” the rules in 

that case because the appellee did not allege that he was deprived of an opportunity 

to designate additional portions of the record, nor did he assert that he was 

otherwise prejudiced in the preparation and presentation of his case. Id.

Citing Bennett, Father alleges that he was harmed by Mother’s untimely 

statement. Without referencing any particulars, Father generally complains that he 

was deprived of an opportunity to supplement the record and to adequately prepare 

his case. The record does not support either allegation. Mother submitted her letter 

in July 2012, nearly three months before the partial reporter’s record was filed in 

this court. Father objected to the incomplete record in September 2012, and he 

filed a letter stating his intent to order a partial trial transcript. See Tex. R. App. P. 

34.6(d) (permitting any party to supplement the record with omitted items). Father 

never supplemented the record as he had stated. Instead, he requested two 

extensions to file his brief, which was not filed in this court until March 2013.

Father never complained about the partial record in either of his motions to extend 

time. There is nothing to suggest that he was actually prejudiced by any delay 
5

caused in ordering a partial record. Cf. Bennett, 96 S.W.3d at 229 (concluding that 

appellate review was not precluded where statement of issues was filed two 

months late and where appellee had more than two months after receiving notice of 

the statement to file his appellate brief). We overrule Father’s objection.

JURISDICTION UNDER THE UCCJEA

In her first issue, Mother challenges the trial court’s exercise of subject 

matter jurisdiction. Because jurisdiction is a question of law, our review is de 

novo. See Powell v. Stover, 165 S.W.3d 322, 325 (Tex. 2005).

The trial court’s jurisdiction is governed by the UCCJEA, a uniform act that 

has been adopted in both Texas and Florida. Under the UCCJEA, the trial court has 

jurisdiction to make an initial child custody determination only if one of these four 

exclusive bases of jurisdiction applies:

(1) this state is the home state of the child on the date of the 

commencement of the proceeding, or was the home state of the child 

within six months before the commencement of the proceeding and 

the child is absent from this state but a parent or person acting as a 

parent continues to live in this state;

(2) a court of another state does not have jurisdiction under 

Subdivision (1), or a court of the home state of the child has declined 

to exercise jurisdiction on the ground that this state is the more 

appropriate forum under Section 152.207 or 152.208, and:

(A) the child and the child’s parents, or the child and at least 

one parent or a person acting as a parent, have a significant 

connection with this state other than mere physical presence; 

and

(B) substantial evidence is available in this state concerning the 

child's care, protection, training, and personal relationships;

(3) all courts having jurisdiction under Subdivision (1) or (2) have 

declined to exercise jurisdiction on the ground that a court of this state 

is the more appropriate forum to determine the custody of the child 

under Section 152.207 or 152.208; or
6

(4) no court of any other state would have jurisdiction under the 

criteria specified in Subdivision (1), (2), or (3).

Tex. Fam. Code § 152.201; see also id. § 152.204 (providing an exception, not 

applicable here, for temporary emergency jurisdiction).

The priority basis is known as home state jurisdiction. See id.

§ 152.201(a)(1). As to a child six months of age or older, a state qualifies as a 

home state if the child lived with a parent or a person acting as a parent for at least 

six consecutive months immediately before the commencement of a child custody 

proceeding. See id. § 152.102(7). Generally, if a child has a home state, the 

custody action must be filed there. If no home state exists, the forum state may 

exercise this priority jurisdiction only if, in the preceding six months, the forum 

state was the child’s home state and a parent or a person acting as a parent 

continues to reside there. See id. § 152.201(a)(1).

Courts refer to the second jurisdictional basis as “significant connection 

jurisdiction.” See, e.g., In re Brown, 203 S.W.3d 888, 894 (Tex. App.—Fort Worth 

2006, no pet.); In re Brilliant, 86 S.W.3d 680, 686 (Tex. App.—El Paso 2002, no 

pet.). This basis applies only if no other state can exercise home state jurisdiction, 

or if the state that can exercise home state jurisdiction has declined jurisdiction for 

other specified reasons. See Tex. Fam. Code § 152.201(a)(2). For the forum state 

to exercise jurisdiction under this basis, the child and at least one parent or a 

person acting as a parent must have a significant connection with the forum state 

beyond mere physical presence, and substantial evidence must be available in the 

forum state regarding the child’s care, protection, training, and personal 

relationships. Id.

The third basis permits the forum state to exercise jurisdiction if all states 

having home state or significant connection jurisdiction decline their jurisdiction
7

because such state is an inconvenient forum and the forum state is the more 

appropriate forum, or because a person seeking to invoke that state court’s 

jurisdiction has engaged in unjustifiable conduct. See id. § 152.201(a)(3).

The fourth basis is jurisdiction by default, and applies when no court of any 

other state would have jurisdiction under the three previously described bases. See 

id. § 152.201(a)(4). Personal jurisdiction over a party or child is not necessary to 

make a child custody determination under this or any of the four described bases. 

See id. § 152.201(c). 

In this case, after considering the evidence presented at a pretrial hearing, 

the trial court determined that it should exercise default jurisdiction under Section 

152.201(a)(4). On appeal, it is unclear whether Mother urges that the trial court 

erred in its implicit determination that Section 152.201(a)(3) does not apply 

because Florida is not the child’s home state under a subdivision (1) analysis, or 

because Florida does not have a significant connection under a subdivision (2) 

analysis. We address both.

Mother argues in her brief that Father “failed to allege or plead any facts that 

Florida or some other state lacked home-state jurisdiction.” However, during their 

first pretrial hearing, the parties seemed to agree that the child had no home state 

when Father first filed his suit. The child had roots only in Texas, Florida, and the 

West Bank, and none was capable of exercising home state jurisdiction. See id. 

§ 152.105 (providing that foreign countries must be treated as states for purposes 

of applying the UCCJEA).2 At the time of suit, the child had not been to Texas for 

more than two years, and he had only been living in Florida for less than four 

months. See In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004) (orig. proceeding) 

 

2

The status of the West Bank is disputed. We presume for the purposes of our analysis 

that the West Bank is located in a foreign country and is treated as a state under the UCCJEA.
8

(providing that jurisdiction is determined at the time suit is filed). Based solely 

upon these time periods, neither Texas nor Florida could qualify as a home state.

See Tex. Fam. Code § 152.102(7). Furthermore, although the child had a home 

state in the West Bank six months before the time of commencement, the West 

Bank could not assume priority jurisdiction because no member of the immediate 

family continued to live there. See id. § 152.201(a)(1). Therefore, the trial court 

correctly determined that no state could exercise home state jurisdiction.

In the absence of a home state, Father argued that Texas qualified as a state 

with significant connections. Father cited evidence showing that the parties lived in 

Texas as husband and wife. They also conceived their child in Texas, who was 

born and raised here until nearly three years of age. The trial court rejected 

Father’s argument and determined that the child no longer had a significant 

connection with Texas, presumably because of his extended absence from the state.

Mother urges next that Father failed to produce evidence regarding the 

child’s connections with Florida. She contends that before the trial court could 

exercise default jurisdiction, Father needed to demonstrate that Florida was not a 

state with significant connection jurisdiction. However, the trial court did have 

evidence of the child’s connection with Florida. The trial court heard from Mother 

that the child had been living there continuously since their return from the West 

Bank; at the time of the hearing, the child had been in Florida for just short of six 

months. The trial court also heard that Mother had sought Medicaid in Florida, and 

that the Florida Attorney General had filed a lawsuit against Father for the 

provision of child support.

The trial court did not, however, hear more pertinent evidence regarding the 

nature and quality of the child’s contacts in Florida. There was no evidence, for 

instance, that the child had enrolled in preschool in Florida, or that Mother had 
9

planned for the child’s future education in Florida. See In re S.J.A., 272 S.W.3d 

678, 685 (Tex. App.—Dallas 2008, no pet.) (concluding that forum state had 

significant connections with the child where such evidence was available). The 

trial court also did not hear that the child was subject to any protection orders in 

Florida, or that he had any other family or friends in Florida besides Mother. See 

Brown, 203 S.W.3d at 894 (concluding that foreign state had significant 

connections because, among other things, the child’s mother, grandmother, and 

pediatrician lived there). Mother invites us to reasonably presume that “much 

more evidence” was available in Florida regarding the child’s care and personal 

relationships and that Father’s failure to refute such unadduced evidence is a 

failure of proof. Mother bases this position on “the undisputed fact that the child 

had been absent from Texas for such a long period of time, and had been a resident 

in the state of Florida nearly long enough to establish Florida as his home state.” 

We decline to indulge this “close enough to six months” presumption. The 

evidence adduced at the pretrial hearing showed little more than that the child was 

physically present in Florida, and presence alone is not sufficient under the statute.

See Tex. Fam. Code § 152.201(a)(2)(A).

There is no question that Father had the burden to establish the trial court’s 

jurisdiction. See In re Oates, 104 S.W.3d 571, 575 (Tex. App.—El Paso 2003, no 

pet.). Thus, if the record before us contained no evidence of the child’s connection 

to Florida, we would face a more challenging question. Here, however, the trial 

court heard evidence about the child’s Florida connection. From that evidence, the 

trial judge expressly found that the proof did not meet the criteria specified for a 

state to exercise significant connection jurisdiction. See Tex. Fam. Code 

§ 152.201(a)(4) (providing that a court may exercise default jurisdiction if “no 

court of any other state would have jurisdiction under the criteria specified in 
10

Subdivision (1), (2), or (3)”). Based on the evidence before the trial court, we 

conclude that the trial court did not err in concluding that neither Texas nor Florida 

would have significant connection jurisdiction.

Because no state would have home state or significant connection 

jurisdiction at the time of suit, the third jurisdictional basis would not apply. 

Jurisdiction cannot be declined if it does not exist.3 Where the first three bases for 

jurisdiction are not present, jurisdiction by default remains. See id. The UCCJEA 

requires that some forum must be available to make a child custody determination. 

We conclude that the trial court did not err by exercising this default jurisdiction. 

Accordingly, we overrule Mother’s first issue.

INCONVENIENT FORUM

In her second issue, Mother argues that the trial court should have declined 

jurisdiction under section 152.207 of the Texas Family Code. This provision states

that the trial court “may decline to exercise its jurisdiction at any time if it 

determines that it is an inconvenient forum under the circumstances and that a 

court of another state is a more appropriate forum.” See id. § 152.207(a). As stated 

by the Texas Supreme Court, Section 152.207 provides “flexibility” during the 

adjudicative process, and is intended to “avert potential injustice” once the trial 

court has determined that it has jurisdiction over the case. See Powell, 165 S.W.3d 

at 327. We review the trial court’s decision on this issue for an abuse of discretion. 

 

3 We note that jurisdiction was declined in Florida during the course of the proceedings, 

but not at a time that is pertinent to our analysis. The record reflects that Mother filed a custody 

action in Florida sometime during the summer of 2010, after the child had been living there long 

enough to establish Florida as his home state. By that time, the Texas court had already taken 

jurisdiction over the case and entered temporary orders granting Father’s visitation with the 

child. The Florida court consulted with the Texas court about the exercise of jurisdiction, as 

required by the UCCJEA. See Tex. Fam. Code §§ 152.110, 152.206. In October 2010, nearly 

eleven months after Father commenced suit in Texas, the Florida court ordered the dismissal of 

Mother’s petition because it determined that Texas was the more appropriate forum.
11

See In re Alanis, 350 S.W.3d 322, 326 (Tex. App.—San Antonio 2011, orig. 

proceeding).

The trial court may consider any relevant factor when deciding whether to 

decline jurisdiction for inconvenient forum. Among the factors that should be 

weighed, the UCCJEA specifically enumerates the following:

(1) whether domestic violence has occurred and is likely to continue 

in the future and which state could best protect the parties and the 

child;

(2) the length of time the child has resided outside this state;

(3) the distance between the court in this state and the court in the 

state that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state should assume 

jurisdiction;

(6) the nature and location of the evidence required to resolve the 

pending litigation, including testimony of the child;

(7) the ability of the court of each state to decide the issue 

expeditiously and the procedures necessary to present the evidence; 

and

(8) the familiarity of the court of each state with the facts and issues in 

the pending litigation.

See Tex. Fam. Code § 152.207(b).

Mother did not cite any specific reason in her motion explaining why the 

trial court should decline jurisdiction for inconvenient forum. Her main argument 

during the hearing seems to be that Florida was a more appropriate forum because 

both Mother and child had been living there for several months. Mother also 

suggested that traveling to Texas is unduly burdensome because she, as a drugstore 

clerk, has less financial resources than Father, who is a public school teacher. The 
12

trial court was not convinced by this argument, and even noted that traveling is “an 

expensive trip for either of them to make.”

Mother also argues in her brief that “[e]vidence pertaining to the child’s 

environment, schooling, medical treatment, and personal relationships was all 

available and accessible in Florida, while none was available in Texas.” This 

argument lacks record support. No testimony was heard during the pretrial 

hearings regarding the child’s environment, schooling, or medical treatments. 

Furthermore, the trial court heard limited testimony regarding the child’s extended 

relations, the scope of which was merely that Mother had family in Chicago, and 

that Father’s family lived in the West Bank. There was no evidence that the child 

had a personal relationship in Florida with any person other than Mother.

Mother contends that this case is similar to In re Alanis, a modification case 

holding that a Texas court should have declined jurisdiction where both the child 

and the custodial parent lived in California. See Alanis, 350 S.W.3d at 328–29. We 

disagree that Alanis is controlling because it was decided on a very different set of 

facts. In that case, nobody lived in the forum state: the mother resided in 

Oklahoma; and at the time of suit, the father and child had very recently left Texas. 

Id. at 327. Although Texas could have exercised default jurisdiction over the case, 

there were many probative factors showing that Texas was not a convenient forum.

The record showed that the mother was a very high earner who could easily bear 

the costs of traveling. It was also undisputed that if the child were forced to attend 

hearings in Texas, he would miss high school and be unable to participate in 

extracurricular activities. This was considered undesirable because the mother had 

already revealed that she traveled weekly to California on business. The father also 

indicated that he had family and other witnesses who could testify on his behalf in 

California. The mother, by contrast, did not intend to rely on any witnesses who 
13

lived in Texas. Her only argument in favor of a Texas forum was that her home in 

Oklahoma was closer to Texas than to California. Id.

The record in this case does not disclose any compelling reason why Texas 

is a more appropriate forum than Florida, or vice versa. The child’s association 

with both states appears to have been slight, but unlike in Alanis, the child at least 

had one parent who continuously lived in the forum state. Mother was clearly in 

the better position to show why Florida should decide the case; having raised the 

child since birth, she had greater and more meaningful access to the evidence 

relevant to the custody determination. However, Mother did not present any such 

evidence to the trial court, at least on the partial record before us. Based on the 

evidence and arguments that were made to the trial court, we conclude that there 

was no abuse of discretion in the trial court’s failing to decline jurisdiction for 

inconvenient forum. We overrule Mother’s second issue.

UNJUSTIFIABLE CONDUCT

In her third issue, Mother argues that the trial court should have declined 

jurisdiction because Father had engaged in unjustifiable conduct. Mother contends 

that Father acted in a reprehensible manner when he divorced her overseas then 

prohibited her from leaving the West Bank without his permission. She claims this 

conduct “literally imprisoned [her] and the child in a third-world, impoverished 

territory subject to constant violence,” and that she was “only able to escape this 

imprisonment after several unsuccessful attempts, and then only with the aid of the 

Israeli government.”

Mother’s argument invokes Section 152.208, which states that a court must 

decline jurisdiction if it determines that it has jurisdiction under the UCCJEA 

“because a person seeking to invoke its jurisdiction has engaged in unjustifiable 

conduct.” See Tex. Fam. Code § 152.208. The drafters of this statute were 
14

concerned with parents who behaved reprehensibly for the purpose of establishing 

jurisdiction in a desired state. See Commissioners’ Office Comment to UCCJEA 

Section 208 (targeting parents who abduct, secrete, retain, or restrain their children 

for legal advantage), reprinted in Sampson and Tindall’s Texas Family Code 

Annotated § 152.208 (2011 ed.). Subject to certain exceptions, Section 152.208 

prevents these parents from receiving any sort of benefit under the UCCJEA. See, 

e.g., In re Lewin, 149 S.W.3d 727, 740 (Tex. App.—Austin 2004, orig. 

proceeding) (“To allow a parent to deliberately secrete a child to Texas for the 

purpose of obtaining a child custody determination in the state would make a 

mockery of the statute.”).

During the pretrial hearings, Father denied any role in restricting Mother’s 

movements inside the West Bank. Even if we accepted Mother’s allegations as 

true, there is no evidence suggesting that Father engaged in such conduct for the 

purpose of invoking jurisdiction in Texas. Indeed, we do not perceive how Father 

could have obtained any legal advantage by divorcing Mother overseas and leaving 

his son behind. The conduct alleged does not fall within the scope of the statute. 

We overrule Mother’s third issue.

SANCTIONS

We finally address Father’s request for appellate sanctions. Father contends 

that Mother’s appeal is meritless and improper because her arguments depend on 

knowing misrepresentations of fact. Father focuses primarily on alleged 

misrepresentations in Mother’s brief describing the hardship she endured while in 

the West Bank. Disputing the veracity of such statements, Father contends that “a 

multiple of evidence was presented at trial which directly contradicts [Mother’s] 

assertion.” Of course, without findings of fact and a record from the trial, we have 

no way of determining whether Mother’s representations are accurate.
15

Father objects to other statements in the brief where Mother criticizes the 

trial court’s exercise of jurisdiction. The statements targeted by Father follow basic 

models of advocacy: e.g., “There was absolutely no evidence introduced, admitted, 

or considered by the trial court which would have allowed it to come to that 

conclusion.” Other statements of which Father complains, such as whether a child 

support action had been initiated against him in Florida, are plainly supported by 

Mother’s testimony during the pretrial hearing. We reject Father’s argument that 

Mother is deserving of sanctions.

CONCLUSION

The judgment of the trial court is affirmed.

/s/ Sharon McCally

Justice

Panel consists of Justices Frost, McCally, and Donovan.