dissenting.
I respectfully dissent on the issue of jurisdiction. The child D.B.P. lived in Tennessee with his parents for almost a year — -from May 2001 until his mother, Sonia, brought him back to Texas on April 24, 2002. Sonia filed for divorce in Texas on May 6, 2002.1 Russell, D.B.P.’s father, filed for divorce in Tennessee on May 20, 2002. Both parents sought custody of D.B.P., and later of his younger brother, D.T.P., who was born after Sonia moved to Texas.
*848Both Texas and Tennessee courts have issued temporary ■ orders concerning D.B.P. On May 8, 2002, the Texas court signed a temporary restraining order which, among other things, prohibited Russell from changing “the child’s-current place of abode” from Silsbee, Texas. On May 21, 2002, the Tennessee court entered a “Temporary Parenting Plan” , giving Russell responsibility for the child. The order expressly states the Tennessee court has jurisdiction over the child.
Subject matter jurisdiction is a question that an appellate court reviews under a de novo standard. See In re Oates, 104 S.W.3d 571, 575-76 (Tex.App.-El Paso 2003, orig. proceeding) (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998)). Here, in addition to the pleadings concerning the jurisdictional issues, the record contains evidence offered at the motion to dismiss hearing — all of which we may consider in a de novo review. Id. at 576.
Relying on Lemley v. Miller, 932 S.W.2d 284, 286-87 (Tex.App.-Austin 1996, no writ), the majority treats the eleven months that Sonia, Russell, and D.B.P. spent in Tennessee as a temporary absence from Texas. In Lemley, the child and his parents resided in Texas until they made a temporary move to Germany, where they lived for eleven months before returning to Texas. Id. at 286. The Lem-ley court treated the time the child lived in Germany as a temporary absence from Texas because the absence was related to Mr. Lemley’s active military duty. Id. at 287 (applying former statute). See Tex. Fam.Code Ann. § 152.102(7) (Vernon 2002).
Active military duty, however, is not the circumstance here, and I would not follow Lemley in this case. Sonia testified she was “trying [Tennessee] out.” But she sold the Texas home where they had been living, moved to Tennessee where Russell had been transferred on his job, lived in Tennessee continuously for eleven months, worked as a permanent employee at a Tennessee Wal-Mart, obtained a Tennessee driver’s license, closed all their Texas bank accounts and opened accounts in Tennessee, and enrolled D.B.P. in a Tennessee school, which he attended for almost the entire school year. For the majority to say the time in Tennessee was a “temporary absence” suggests that what amounts to a change of mind by one parent changes home state jurisdiction for the child.
The evidence establishes jurisdiction- — of the D.B.P. initial child custody determination — not in Texas but rather in Tennessee, by virtue of the second clause of section 152.201(a)(1): Within the six month time frame prior to commencement of the proceeding, Tennessee was the child’s home state; and the child is absent from Tennessee, but Russell still lives in Tennessee. See Tex. Fam.Code Ann. § 152.201(a)(1) (Vernon 2002); Tenn.Code Ann. 36-6-216 (2003); see also In Interest of Y.M.A., 111 S.W.3d 790, 792-94 (Tex.App.-Fort Worth 2003, no pet. h.). If the Tennessee court defers to Texas, the Texas court may have “significant connection” jurisdiction under section 152.201(a)(2). See Tex. Fam.Code Ann. § 152.201(a)(2) (Vernon 2002). Those significant connections exist because the Powells lived in Texas before they moved to Tennessee. And the Powells’ second child, D.T.P., has lived only in Texas. I acknowledge it would be inappropriate to require custody proceedings in different states if one court can resolve all the custody issues. Texas may be a more appropriate forum than Tennessee. But, as I read the Code, the decision to defer to Texas as a more appropriate forum is left entirely to the home state court: here, Tennessee.
I would hold that the custody proceeding below must be stayed and the trial *849court must communicate with the Tennessee court. See Tex Fam.Code Ann. § 152.110(d) (Vernon 2002). The Code requires this communication. Unless and until the Tennessee court defers, the Texas court lacks jurisdiction under the Texas Family Code to make the initial custody determination for the minor child, D.B.P.2
. The "General Residency Rule for Divorce Suit” is worth noting. See Tex Fam.Code Ann. § 6.301 (Vernon 1998).
. A Tennessee court order has been entered which requires Sonia to return the child to Tennessee. I do not find it necessary to address appellant's argument that the Parental Kidnaping Prevention Act of 1980, 28 U.S.C.A. § 1738A (1994 & Supp.2003) governs. I do believe, however, that the Texas trial court is not "exercising jurisdiction consistently with the provisions” of the PKPA. See id.