OFFICIAL COMMENT

Section 1 of the UCCJA [former G.S. 50A-1] was a statement of the purposes of the Act. Although extensively cited by courts, it was eliminated because Uniform Acts no longer contain such a section. Nonetheless, this Act should be interpreted according to its purposes which are to:

1. Avoid jurisdictional competition and conflict with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being;
2. Promote cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child;
3. Discourage the use of the interstate system for continuing controversies over child custody;
4. Deter abductions of children;
5. Avoid relitigation of custody decisions of other States in this State;
6. Facilitate the enforcement of custody decrees of other States.

Cross References.

As to civil child-custody order, see G.S. 7B-911.

Editor’s Note.

Session Laws 1999-223 repealed G.S. 50A-1 to 50A-25, the Uniform Child Custody Jurisdiction Act, and added G.S. 50A-101 et seq., the Uniform Child-Custody Jurisdiction and Enforcement Act. Where applicable, the historical citations and case notes under the former sections have been transferred to the corresponding new sections.

Legal Periodicals.

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For survey of 1981 family law, see 60 N.C.L. Rev. 1379 (1982).

For comment discussing the Uniform Child Custody Jurisdiction Act in North Carolina, see 4 Campbell L. Rev. 371 (1982).

For legislative survey on family and juvenile law, see 22 Campbell L. Rev. 253 (2000).

For case note, “Nunn v. Allen, Living Separate and Apart in North Carolina, Separation Agreements, Sex, the Meaning of Unmarried, and Liability of Third Parties,” 25 N.C. Cent. L.J. 242 (2003).

For article, “When Petitioners Seek Custody in Domestic Violence Court and Why We Should Take Them Seriously,” see 47 Wake Forest L. Rev. 935 (2012).

For article, “For the Sake of the Child: Parental Recognition in the Age of Assisted Reproductive Technology A Framework for North Carolina,” see 43 Campbell L. Rev. 21 (2021).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under former G.S. 50A-1.

Legislative Intent. —

The former Uniform Child Custody Jurisdiction Act was intended to prevent forum shopping for the convenience of competing parents to the detriment of the real interest of the child. Holland v. Holland, 56 N.C. App. 96, 286 S.E.2d 895, 1982 N.C. App. LEXIS 2305 (1982).

Purpose. —

The former Uniform Child Custody Jurisdiction Act sought to prevent parents from forum shopping their child custody disputes and to assure that these disputes were litigated in the state with which the child and the child’s family had the closest connection. In re Van Kooten, 126 N.C. App. 764, 487 S.E.2d 160, 1997 N.C. App. LEXIS 625 (1997).

Uniform Child-Custody Jurisdiction and Enforcement Act, G.S. 50A-101 et seq., provides a uniform set of jurisdictional rules and guidelines for the national enforcement of child custody orders. In re Q.V., 164 N.C. App. 737, 596 S.E.2d 867, 2004 N.C. App. LEXIS 1140, cert. denied, 358 N.C. 732, 601 S.E.2d 859, 2004 N.C. LEXIS 1007 (2004).

Trial court had jurisdiction to enter a custody order because the action was commenced in North Carolina; even though the father, mother, and child moved out of the State shortly after the initiation of the suit, North Carolina retained its jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) until the conclusion of the matter, and that continuity promoted the UCCJEA’s purpose of avoiding jurisdictional competition and conflict with courts of other States. Waly v. Alkamary, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

Trial court had jurisdiction to enter a custody order because the action was commenced in North Carolina; even though the father, mother, and child moved out of the State shortly after the initiation of the suit, North Carolina retained its jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) until the conclusion of the matter, and that continuity promoted the UCCJEA’s purpose of avoiding jurisdictional competition and conflict with courts of other States. Waly v. Alkamary, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

What Law Governs. —

The issue of a state court’s jurisdiction over child custody matters is governed by the Uniform Child Custody Jurisdiction Act (see now G.S. 50A-101 et seq.) and the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A. Schrock v. Schrock, 89 N.C. App. 308, 365 S.E.2d 657, 1988 N.C. App. LEXIS 296 (1988).

Applicability of Chapter to Permanent Custody Situations. —

The jurisdictional prerequisites of the former Uniform Child Custody Jurisdiction Act (UCCJA) only governed in permanent custody situations. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169, 1988 N.C. App. LEXIS 74 (1988).

Chapter 50B is not designed to establish alternative grounds for jurisdiction over custody disputes apart from those set forth in this Chapter. Danna v. Danna, 88 N.C. App. 680, 364 S.E.2d 694, 1988 N.C. App. LEXIS 211 (1988).

Whenever the relief sought under Chapter 50B is a determination of custody or visitation rights, the existence of subject matter jurisdiction over the action is governed by this Chapter (see now Article 2 of this Chapter), just as it is in any other custody dispute. Danna v. Danna, 88 N.C. App. 680, 364 S.E.2d 694, 1988 N.C. App. LEXIS 211 (1988).

Only by making recognition and enforcement mandatory can purposes of this Chapter (see now Article 2 of this Chapter) be realized. Williams v. Richardson, 53 N.C. App. 663, 281 S.E.2d 777, 1981 N.C. App. LEXIS 2722 (1981).

The question of subject matter jurisdiction could be raised at any point in a proceeding under the former Uniform Child Custody Jurisdiction Act, and such jurisdiction could not be conferred by waiver, estoppel or consent. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921, 1984 N.C. App. LEXIS 3889 (1984).

The district courts of this State possess general subject matter jurisdiction over child custody disputes. Such matters are in no wise reserved by the Constitution or laws of North Carolina to the exclusive consideration of another tribunal. Therefore, the real question under the former Uniform Child Custody Jurisdiction Act was whether jurisdiction was properly exercised according to the statutory requirements in a particular case. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921, 1984 N.C. App. LEXIS 3889 (1984).

Trial Court Lacked Subject Matter Jurisdiction. —

Although the general requirement for jurisdiction was satisfied as the children who were the subject of a petition to terminate their mother’s parental rights resided in North Carolina when the petition was filed, the trial court’s order denying the mother’s motion to dismiss was vacated as the trial court lacked subject matter jurisdiction under the North Carolina Uniform Child-Custody Jurisdiction and Enforcement Act, NC. Gen. Stat. § 50A-101 et seq. In re N.R.M., 165 N.C. App. 294, 598 S.E.2d 147, 2004 N.C. App. LEXIS 1163 (2004).

Trial court properly dismissed a grandfather’s complaint for custody of his maternal grandchild because it lacked subject matter jurisdiction to proceed due to a pre-existing child custody action between the child’s paternal grandparents and the child’s now-deceased mother, which did not abate for reasons of constitutional and statutory law and, and, while any relative could seek custody of a child, the grandfather did not file suit against an allegedly unfit parent, and as his complaint was more akin to a request to modify the custody order than it was an initial claim for custody, the proper procedure for the grandfather was to file a motion to intervene and a motion for custody in the grandparents’ custody action. Rivera v. Matthews, 263 N.C. App. 652, 824 S.E.2d 164, 2019 N.C. App. LEXIS 76 (2019).

Full Faith and Credit Properly Refused. —

Refusal of North Carolina court to give full faith and credit to a Michigan custody award was not improper, where Michigan’s exercise of jurisdiction was not consistent with the Parental Kidnapping Act, 28 U.S.C. § 1738A, and the former Uniform Child Custody Jurisdiction Act. Schrock v. Schrock, 89 N.C. App. 308, 365 S.E.2d 657, 1988 N.C. App. LEXIS 296 (1988).

Power to Award Custody to Foster Parents. —

Having acquired subject matter jurisdiction, trial court, guided by the best interests of the child, had broad dispositional powers, including the power to award legal custody of child to its foster parents. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

No Attorney Fees After Contempt Motion. —

Father’s request for attorney fees was properly denied as a mother had filed a motion for contempt; she did not seek the expedited enforcement of a child custody determination, seek to register an out-of-state order, or otherwise utilize the remedies set forth in Part 3 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and thus Part 3 of the UCCJEA was not implicated and G.S. 50A-312 did not apply. Creighton v. Lazell-Frankel, 178 N.C. App. 227, 630 S.E.2d 738, 2006 N.C. App. LEXIS 1314 (2006).

Evidence was insufficient to determine that it was in the child’s best interest to have another state assume jurisdiction. Watkins v. Watkins, 120 N.C. App. 475, 462 S.E.2d 687, 1995 N.C. App. LEXIS 889 (1995).

OFFICIAL COMMENT

The UCCJA did not contain a definition of “child.” The definition here is taken from the PKPA.

The definition of “child-custody determination” now closely tracks the PKPA definition. It encompasses any judgment, decree or other order which provides for the custody of, or visitation with, a child, regardless of local terminology, including such labels as “managing conservatorship” or “parenting plan.”

The definition of “child-custody proceeding” has been expanded from the comparable definition in the UCCJA. These listed proceedings have generally been determined to be the type of proceeding to which the UCCJA and PKPA are applicable. The list of examples removes any controversy about the types of proceedings where a custody determination can occur. Proceedings that affect access to the child are subject to this Act. The inclusion of proceedings related to protection from domestic violence is necessary because in some States domestic violence proceedings may affect custody of and visitation with a child. Juvenile delinquency or proceedings to confer contractual rights are not “custody proceedings” because they do not relate to civil aspects of access to a child. While a determination of paternity is covered under the Uniform Interstate Family Support Act, the custody and visitation aspects of paternity cases are custody proceedings. Cases involving the Hague Convention on the Civil Aspects of International Child Abduction have not been included at this point because custody of the child is not determined in a proceeding under the International Child Abductions Remedies Act. Those proceedings are specially included in the Article 3 enforcement process.

“Commencement” has been included in the definitions as a replacement for the term “pending” found in the UCCJA. Its inclusion simplifies some of the simultaneous proceedings provisions of this Act.

The definition of “home State” has been reworded slightly. No substantive change is intended from the UCCJA.

The term “issuing State” is borrowed from UIFSA. In UIFSA, it refers to the court that issued the support or parentage order. Here, it refers to the State, or the court, which made the custody determination that is sought to be enforced. It is used primarily in Article 3.

The term “person” has been added to ensure that the provisions of this Act apply when the State is the moving party in a custody proceeding or has legal custody of a child. The definition of “person” is the one that is mandated for all Uniform Acts.

The term “person acting as a parent” has been slightly redefined. It has been broadened from the definition in the UCCJA to include a person who has acted as a parent for a significant period of time prior to the filing of the custody proceeding as well as a person who currently has physical custody of the child. In addition, a person acting as a parent must either have legal custody or claim a right to legal custody under the law of this State. The reference to the law of this State means that a court determines the issue of whether someone is a “person acting as a parent” under its own law. This reaffirms the traditional view that a court in a child custody case applies its own substantive law. The court does not have to undertake a choice-of-law analysis to determine whether the individual who is claiming to be a person acting as a parent has standing to seek custody of the child.

The definition of “tribe” is the one mandated for use in Uniform Acts. Should a State choose to apply this Act to tribal adjudications, this definition should be enacted as well as the entirety of Section 104.

The term “contestant” as has been omitted from this revision. It was defined in the UCCJA § 2(1) [former G.S. 50A-2(1)] as “a person, including a parent, who claims a right to custody or visitation rights with respect to a child.” It seems to have served little purpose over the years, and whatever function it once had has been subsumed by state laws on who has standing to seek custody of or visitation with a child. In addition UCCJA § 2(5) [former G.S. 50A-2(4)] of the which defined “decree” and “custody decree” has been eliminated as duplicative of the definition of “custody determination.”

CASE NOTES

Editor’s Note. —

Many of the cases cited below were decided under former G.S. 50A-2.

Home State. —

Findings held to sufficiently establish that North Carolina was the home state of child and to establish that child and at least one parent had a significant connection with North Carolina. Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444, 1985 N.C. App. LEXIS 4397 (1985).

The trial court had subject matter jurisdiction over the custody of a child, where the father’s former companion sought custody of the child as the child had lived with the companion in North Carolina until a month before her complaint was filed. Ellison v. Ramos, 130 N.C. App. 389, 502 S.E.2d 891, 1998 N.C. App. LEXIS 946 (1998).

In the child custody dispute where the mother lived in Maryland and the father lived in North Carolina, the North Carolina trial court had jurisdiction pursuant to G.S. 50A-201, because the children had lived in North Carolina for six months prior to the custody action being filed, and as a result, it was their home state under G.S. 50A-102(7). David v. Ferguson, 153 N.C. App. 482, 571 S.E.2d 230, 2002 N.C. App. LEXIS 1176 (2002).

Trial court properly found that it had jurisdiction to enter custody and termination orders under circumstances in which, at the time of the petition, the older child was in the custody of the department in North Carolina and had been for 18 months, the mother had earlier moved to North Carolina with the older child, at the date of the petition the mother was incarcerated in North Carolina, and the younger child had no contact with any other state; because the trial court asserted its jurisdiction in the order and the evidence supported its determination, the trial court properly exercised jurisdiction. In re T.J.D.W., 182 N.C. App. 394, 642 S.E.2d 471, 2007 N.C. App. LEXIS 672, aff'd, 362 N.C. 84, 653 S.E.2d 143, 2007 N.C. LEXIS 1225 (2007).

North Carolina was the child’s home state pursuant to the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction and Enforcement Act because the child resided with the mother for a period of more than six months immediately preceding the commencement of the custody proceeding. Williams v. Walker, 185 N.C. App. 393, 648 S.E.2d 536, 2007 N.C. App. LEXIS 1826 (2007).

North Carolina had jurisdiction over a custody case involving a child who had resided in North Carolina with his paternal grandparents for at least six months prior to the filing of the custody action, even though the trial court’s findings did not expressly track the language in G.S. 50A-102(7). Because a Florida order on child support did not provide for legal custody, physical custody, or visitation, it was not a child custody determination, allowing North Carolina to properly exercise jurisdiction. Powers v. Wagner, 213 N.C. App. 353, 716 S.E.2d 354, 2011 N.C. App. LEXIS 1471 (2011).

Neither before nor after the trial court’s entry of the nonsecure custody orders had there been any custody proceedings instituted or custody orders entered in any state other than North Carolina, and the child had lived in the State with the child’s foster parents since September 2011, and thus North Carolina became the child’s home state such that the trial court possessed jurisdiction to terminate the mother’s parental rights. In re N.T.U., 234 N.C. App. 722, 760 S.E.2d 49, 2014 N.C. App. LEXIS 685 (2014).

North Carolina court had child custody jurisdiction under G.S. 50A-201(a)(2) because (1) no state was the child’s home state and (2) the child, the child’s parents, and the child’s grandparents, who were acting as parents, lived in North Carolina, and substantial evidence about the child’s care, protection, training, and personal relationships was available in North Carolina. In re T.N.G., 244 N.C. App. 398, 781 S.E.2d 93, 2015 N.C. App. LEXIS 1041 (2015).

Trial court properly exercised subject-matter jurisdiction regarding a father’s parental rights on a temporary emergency basis because his children lived in North Carolina for more than a year prior to the hearing on pre-adjudication, adjudication, and disposition, and thus, North Carolina qualified as their “home state”; once a Michigan court determined North Carolina would be a more convenient forum and relinquished jurisdiction over the children, the trial court could assert jurisdiction. In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598, 2017 N.C. App. LEXIS 545 (2017).

Orders granting the county department of social services (DSS) custody of a child were not void for lack of subject matter jurisdiction, and DSS had standing to file the petition to terminate the mother’s parental rights, because the trial court had “home state” jurisdiction to make an initial child-custody determination regarding the child; the child had lived with the mother in North Carolina during the six months immediately preceding the filing of the juvenile petition. In re S.E., 373 N.C. 360, 838 S.E.2d 328, 2020 N.C. LEXIS 94 (2020).

Father failed to show that the trial court lacked subject matter jurisdiction to modify a Delaware court custody order under the UCCJEA where it was undisputed that the child’s mother, the father, and the child no longer resided in Delaware when the county department of social services (DSS) filed the juvenile petition, and initial information that the child did not reside in North Carolina was superseded by more accurate information that the child had resided in the state for more than six months before DSS filed the juvenile petition. Thus, North Carolina was the child’s home state. In re L.T., 374 N.C. 567, 843 S.E.2d 199, 2020 N.C. LEXIS 508 (2020).

Trial court did not err in dismissing the father’s complaint for lack of subject-matter jurisdiction after finding that it did not have subject-matter jurisdiction over the older child because North Carolina was not her home state. Halili v. Ramnishta, 273 N.C. App. 235, 848 S.E.2d 542, 2020 N.C. App. LEXIS 638 (2020).

Trial court had exclusive, original jurisdiction over the termination of a parental rights case regarding a child because it properly determined that North Carolina was the home state for the child; the child was born in North Carolina and lived with foster parents in the State for the six months immediately before the filing of the termination of parental rights petition, and for the entirety of her life, the child lived in North Carolina. In re N.P., 376 N.C. 729, 855 S.E.2d 203, 2021- NCSC-11, 2021 N.C. LEXIS 173 (2021).

At the “commencement” of a “child custody proceeding,” North Carolina was clearly the “home state” of the child, as the child had resided in North Carolina for more than six months. Waly v. Alkamary, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

At the “commencement” of a “child custody proceeding,” North Carolina was clearly the “home state” of the child, as the child had resided in North Carolina for more than six months. Waly v. Alkamary, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

Child had no home state under the Uniform Child-Custody Jurisdiction and Enforcement Act because he had not lived in any state for at least six consecutive months prior to the petition being filed, and although he was less than six months of age, he had not lived from birth in any one state with a parent or person acting as a parent. In re M.R.J., 2021-NCSC-112, 378 N.C. 648, 862 S.E.2d 639, 2021- NCSC-112, 2021 N.C. LEXIS 927 (2021).

Trial court had jurisdiction to modify an out-of-state child custody order because North Carolina was the home state as the father and the children lived in North Carolina for at least six months before the custody proceedings; the New York child custody order specifically stated it was relinquishing jurisdiction; and the mother acquiesced to the trial court’s jurisdiction. Malone-Pass v. Schultz, 868 S.E.2d 327, 2021- NCCOA-656, 2021 N.C. App. LEXIS 680 (Ct. App. 2021).

Initial Determination. —

North Carolina trial court lacked subject matter jurisdiction over an initial custody determination because a prior custody order was entered in a court in New Jersey. In re J.A.P., 218 N.C. App. 190, 721 S.E.2d 253, 2012 N.C. App. LEXIS 65 (2012).

Texas custody order was an “initial determination” because the order stated the child’s father was to have no contact with the child, the child’s mother had temporary sole custody, and the father had not established paternity and was not entitled to possession of or access to the child. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228, 2015 N.C. App. LEXIS 989 (2015).

Modification Decree. —

North Carolina decree modifying a prior custody decree by a Virginia court was improper under the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A, where the Virginia court had continuing jurisdiction and had not declined to exercise it. Meade v. Meade, 650 F. Supp. 205, 1986 U.S. Dist. LEXIS 27915 (M.D.N.C. 1986), aff'd, 812 F.2d 1473, 1987 U.S. App. LEXIS 3324 (4th Cir. 1987).

Trial court did not have jurisdiction, under G.S. 50A-203, to modify a Texas custody order because, while the court had jurisdiction to enter an initial custody order, (1) the Texas court did not find that court no longer has exclusive, continuing jurisdiction or that a North Carolina court was a more convenient forum, and (2) the trial court found the child’s mother resided in Texas. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228, 2015 N.C. App. LEXIS 989 (2015).

Changed Circumstances. —

Where the parties crossed out a cohabitation provision on the face of their separation memorandum, the trial court only partially discharged its duty when it found that a change of circumstances occurred when husband began cohabiting with his girlfriend but failed to determine whether plaintiff had met her burden of showing the effect, if any, such change had upon the welfare of the children. Browning v. Helff, 136 N.C. App. 420, 524 S.E.2d 95, 2000 N.C. App. LEXIS 14 (2000).

No Attorney Fees After Contempt Motion. —

Father’s request for attorney fees was properly denied as a mother had filed a motion for contempt; she did not seek the expedited enforcement of a child custody determination, seek to register an out-of-state order, or otherwise utilize the remedies set forth in Part 3 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and thus Part 3 of the UCCJEA was not implicated and G.S. 50A-312 did not apply. Creighton v. Lazell-Frankel, 178 N.C. App. 227, 630 S.E.2d 738, 2006 N.C. App. LEXIS 1314 (2006).

Refusal to Assert Jurisdiction Held Proper. —

For case holding trial court properly declined to assert jurisdiction based upon conclusion that another state had assumed jurisdiction as the home state of the children involved in the custody matter in question, see Bhatti v. Bhatti, 98 N.C. App. 493, 391 S.E.2d 201, 1990 N.C. App. LEXIS 423 (1990).

Vermont family court order, which directed custody to a father was upheld, and a North Carolina court properly declined jurisdiction, where there was no question that the parties’ minor children were living in Vermont for the required six months prior to the commencement of the mother’s custody proceeding in North Carolina. Vermont qualified as the children’s home state under North Carolina and Vermont law despite a six week absence from Vermont to North Carolina, which was deemed a temporary absence insufficient to prevent the conclusion that Vermont was the home state. Chick v. Chick, 164 N.C. App. 444, 596 S.E.2d 303, 2004 N.C. App. LEXIS 1036 (2004).

Trial Court Erred in Exercising Jurisdiction. —

The trial court in this State erred in exercising its jurisdiction over a custody matter where a proceeding was already pending in an Indiana court and the child had lived in Indiana since 1981, a period of six years. Indiana was exercising jurisdiction in substantial conformity with the former Uniform Child Custody Jurisdiction Act (UCCJA), and North Carolina was required to decline jurisdiction over the custody issue. Lynch v. Lynch, 96 N.C. App. 601, 386 S.E.2d 607, 1989 N.C. App. LEXIS 1111 (1989).

Trial court lacked jurisdiction to enter an order adjudicating a mother’s son neglected and dependent and placing him in the custody of a department because there was no finding of fact, order, or other indication that the New York court involved in prior protective services had opted not to exercise jurisdiction; there was no finding or conclusion concerning status of the New York court’s jurisdiction or finding that the North Carolina court met the requirements of G.S. 50A-201(a)(1) or G.S. 50A-201(a)(2) such that it could make a modification under G.S. 50A-203. In re E.J., 225 N.C. App. 333, 738 S.E.2d 204, 2013 N.C. App. LEXIS 128 (2013).

District court erred in terminating a father’s parental rights because it never acquired subject matter jurisdiction; without an order from the New Jersey court relieving itself of jurisdiction, the district court lacked any basis to conclude it acquired subject matter jurisdiction over the case. In re T.E.N., 252 N.C. App. 461, 798 S.E.2d 792, 2017 N.C. App. LEXIS 218 (2017).

County department of social services is a “person.” —

Under the definition of a “person,” a state agency, such as a department of social services, may qualify as a petitioner or respondent in a proceeding to enforce a child custody determination. In re Q.V., 164 N.C. App. 737, 596 S.E.2d 867, 2004 N.C. App. LEXIS 1140, cert. denied, 358 N.C. 732, 601 S.E.2d 859, 2004 N.C. LEXIS 1007 (2004).

Child abandoned when parent imprisoned. —

Trial court properly entered the initial nonsecure custody orders pursuant to the court’s temporary emergency jurisdiction and properly found the child to be abandoned; the child’s mother had been arrested and incarcerated, the child was left without supervision or provision for the child’s care, and the trial court found that the department needed to assume custody since the mother would be unable to care for the child and the mother’s recommended placement had pending criminal charges, including sexual offenses against a child. In re N.T.U., 234 N.C. App. 722, 760 S.E.2d 49, 2014 N.C. App. LEXIS 685 (2014).

OFFICIAL COMMENT

Two proceedings are governed by other acts. Adoption cases are excluded from this Act because adoption is a specialized area which is thoroughly covered by the Uniform Adoption Act (UAA) (1994). Most States either will adopt that Act or will adopt the jurisdictional provisions of that Act. Therefore the jurisdictional provisions governing adoption proceeding are generally found elsewhere.

However, there are likely to be a number of instances where it will be necessary to apply this Act in an adoption proceeding. For example, if a State adopts the UAA then Section 3-101 of the Act specifically refers in places to the Uniform Child Custody Jurisdiction Act which will become a reference to this Act. Second, the UAA requires that if an adoption is denied or set aside, the court is to determine the child’s custody. UAA § 3-704. Those custody proceedings would be subject to this Act. See Joan Heifetz Hollinger, The Uniform Adoption Act: Reporter’s Ruminations, 30 Fam.L.Q. 345 (1996).

Children that are the subject of interstate placements for adoption or foster care are governed by the Interstate Compact on the Placement of Children (ICPC). The UAA § 2-107 provides that the provisions of the compact, although not jurisdictional, supply the governing rules for all children who are subject to it. As stated in the Comments to that section: “Once a court exercises jurisdiction, the ICPC helps determine the legality of an interstate placement.” For a discussion of the relationship between the UCCJA and the ICPC see J.D.S. v. Franks, 893 P.2d 732 (Ariz. 1995).

Proceedings pertaining to the authorization of emergency medical care for children are outside the scope of this Act since they are not custody determinations. All States have procedures which allow the State to temporarily supersede parental authority for purposes of emergency medical procedures. Those provisions will govern without regard to this Act.

OFFICIAL COMMENT

This section allows States the discretion to extend the terms of this Act to Indian tribes by removing the brackets. The definition of “tribe” is found at Section 102(16). This Act does not purport to legislate custody jurisdiction for tribal courts. However, a Tribe could adopt this Act as enabling legislation by simply replacing references to “this State” with “this Tribe.”

Subsection (a) is not bracketed. If the Indian Child Welfare Act requires that a case be heard in tribal court, then its provisions determine jurisdiction.

OFFICIAL COMMENT

The provisions of this Act have international application to child custody proceedings and determinations of other countries. Another country will be treated as if it were a State of the United States for purposes of applying Articles 1 and 2 of this Act. Custody determinations of other countries will be enforced if the facts of the case indicate that jurisdiction was in substantial compliance with the requirements of this Act.

In this section, the term “child-custody determination” should be interpreted to include proceedings relating to custody or analogous institutions of the other country. See generally, Article 3 of The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. 35 I.L.M. 1391 (1996).

A court of this State may refuse to apply this Act when the child custody law of the other country violates basic principles relating to the protection of human rights and fundamental freedoms. The same concept is found in of the Section 20 of the Hague Convention on the Civil Aspects of International Child Abduction (return of the child may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms). In applying subsection (c), the court’s scrutiny should be on the child custody law of the foreign country and not on other aspects of the other legal system. This Act takes no position on what laws relating to child custody would violate fundamental freedoms. While the provision is a traditional one in international agreements, it is invoked only in the most egregious cases.

This section is derived from Section 23 of the UCCJA [former G.S. 50A-23.]

OFFICIAL COMMENT

No substantive changes have been made to this section which was Section 12 of the UCCJA.

OFFICIAL COMMENT

No substantive change was made to this section which was Section 24 of the UCCJA. The section is placed toward the beginning of Article 1 to emphasize its importance.

The language change from “case” to “question” is intended to clarify that it is the jurisdictional issue which must be expedited and not the entire custody case. Whether the entire custody case should be given priority is a matter of local law.

OFFICIAL COMMENT

This section authorizes notice and proof of service to be made by any method allowed by either the State which issues the notice or the State where the notice is received. This eliminates the need to specify the type of notice in the Act and therefore the provisions of Section 5 of the UCCJA [former G.S. 50A-5] which specified how notice was to be accomplished were eliminated. The change reflects an approach in this Act to use local law to determine many procedural issues. Thus, service by facsimile is permissible if allowed by local rule in either State. In addition, where special service or notice rules are available for some procedures, in either jurisdiction, they could be utilized under this Act. For example, if a case involves domestic violence and the statute of either State would authorize notice to be served by a peace officer, such service could be used under this Act.

Although Section 105 requires foreign countries to be treated as States for purposes of this Act, attorneys should be cautioned about service and notice in foreign countries. Countries have their own rules on service which must usually be followed. Attorneys should consult the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 U.S.T. 36, T.I.A.S. 6638 (1965).

OFFICIAL COMMENT

This section establishes a general principle that participation in a custody proceeding does not, by itself, give the court jurisdiction over any issue for which personal jurisdiction over the individual is required. The term “participate” should be read broadly. For example, if jurisdiction is proper under Article 2, a respondent in an original custody determination, or a party in a modification determination, should be able to request custody without this constituting the seeking of affirmative relief that would waive personal jurisdictional objections. Once jurisdiction is proper under Article 2, a party should not be placed in the dilemma of choosing between seeking custody or protecting a right not to be subject to a monetary judgment by a court with no other relationship to the party.

This section is comparable to the immunity provision of UIFSA § 314. A party who is otherwise not subject to personal jurisdiction can appear in a custody proceeding or an enforcement action without being subject to the general jurisdiction of the State by virtue of the appearance. However, if the petitioner would otherwise be subject to the jurisdiction of the State, appearing in a custody proceeding or filing an enforcement proceeding will not provide immunity. Thus, if the non-custodial parent moves from the State that decided the custody determination, that parent is still subject to the state’s jurisdiction for enforcement of child support if the child or an individual obligee continues to reside there. See UIFSA § 205. If the non-custodial parent returns to enforce the visitation aspects of the custody determination, the State can utilize any appropriate means to collect the back-due child support. However, the situation is different if both parties move from State A after the determination, with the custodial parent and the child establishing a new home State in State B, and the non-custodial parent moving to State C. The non-custodial parent is not, at this point, subject to the jurisdiction of State B for monetary matters. See Kulko v. Superior Court , 436 U.S. 84 (1978). If the non-custodial parent comes into State B to enforce the visitation aspects of the determination, the non-custodial parent is not subject to the jurisdiction of State B for those proceedings and issues requiring personal jurisdiction by filing the enforcement action.

A party also is immune from service of process during the time in the State for an enforcement action except for those claims for which jurisdiction could be based on contacts other than mere physical presence. Thus, when the non-custodial parent comes into State B to enforce the visitation aspects of the decree, State B cannot acquire jurisdiction over the child support aspects of the decree by serving the non-custodial parent in the State. Cf. UIFSA § 611 (personally serving the obligor in the State of the residence of the obligee is not by itself a sufficient jurisdictional basis to authorize a modification of child support). However, a party who is in this State and subject to the jurisdiction of another State may be served with process to appear in that State, if allowable under the laws of that State.

As the Comments to UIFSA § 314 note, the immunity provided by this section is limited. It does not provide immunity for civil litigation unrelated to the enforcement action. For example, a party to an enforcement action is not immune from service regarding a claim that involves an automobile accident occurring while the party is in the State.

OFFICIAL COMMENT

This section emphasizes the role of judicial communications. It authorizes a court to communicate concerning any proceeding arising under this Act. This includes communication with foreign tribunals and tribal courts. Communication can occur in many different ways such as by telephonic conference and by on-line or other electronic communication. The Act does not preclude any method of communication and recognizes that there will be increasing use of modern communication techniques.

Communication between courts is required under Sections 204, 206, and 306 and strongly suggested in applying Section 207. Apart from those sections, there may be less need under this Act for courts to communicate concerning jurisdiction due to the prioritization of home state jurisdiction. Communication is authorized, however, whenever the court finds it would be helpful. The court may authorize the parties to participate in the communication. However, the Act does not mandate participation. Communication between courts is often difficult to schedule and participation by the parties may be impractical. Phone calls often have to be made after-hours or whenever the schedules of judges allow.

This section does require that a record be made of the conversation and that the parties have access to that record in order to be informed of the content of the conversation. The only exception to this requirement is when the communication involves relatively inconsequential matters such as scheduling, calendars, and court records. Included within this latter type of communication would be matters of cooperation between courts under Section 112. A record includes notes or transcripts of a court reporter who listened to a conference call between the courts, an electronic recording of a telephone call, a memorandum or an electronic record of the communication between the courts, or a memorandum or an electronic record made by a court after the communication.

The second sentence of subsection (b) protects the parties against unauthorized ex parte communications. The parties’ participation in the communication may amount to a hearing if there is an opportunity to present facts and jurisdictional arguments. However, absent such an opportunity, the participation of the parties should not to be considered a substitute for a hearing and the parties must be given an opportunity to fairly and fully present facts and arguments on the jurisdictional issue before a determination is made. This may be done through a hearing or, if appropriate, by affidavit or memorandum. The court is expected to set forth the basis for its jurisdictional decision, including any court-to-court communication which may have been a factor in the decision.

CASE NOTES

Sufficient record of communication found. —

Vermont family court order asserting jurisdiction in a divorce proceeding filed by a father and directing custody of the parties’ two minor children to him that stated that it consulted with the appropriate judge presiding in the custody proceedings commenced in North Carolina by the mother and that indicated that the conversation between the two courts disclosed that the facts alleged by the parties in their respective cases were substantially similar, was a sufficient record of the communication between the two courts. Mother did not dispute the procedural history as set out in the Vermont order concerning the North Carolina proceeding and she failed to show that she was deprived of an opportunity to fairly and fully present facts and arguments on the jurisdictional issue before the North Carolina court. Chick v. Chick, 164 N.C. App. 444, 596 S.E.2d 303, 2004 N.C. App. LEXIS 1036 (2004).

Failure to Communicate. —

Trial court’s adjudication and disposition, custody review, and permanency planning orders were vacated because (1) another state had entered a custody order as to the child, and (2) the trial court did not exercise temporary emergency jurisdiction in entering these orders, as none of the orders stated an adequate time within which to obtain an order from the court that entered the initial custody order, the court did not immediately communicate with that court, and the court did not purport to exercise emergency jurisdiction, as the court merely found the court had jurisdiction. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228, 2015 N.C. App. LEXIS 989 (2015).

Temporary Emergency Jurisdiction. —

Trial court properly exercised subject-matter jurisdiction regarding a father’s parental rights on a temporary emergency basis because his children lived in North Carolina for more than a year prior to the hearing on pre-adjudication, adjudication, and disposition, and thus, North Carolina qualified as their “home state”; once a Michigan court determined North Carolina would be a more convenient forum and relinquished jurisdiction over the children, the trial court could assert jurisdiction. In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598, 2017 N.C. App. LEXIS 545 (2017).

OFFICIAL COMMENT

No substantive changes have been made to subsection (a) which was Section 18 of the UCCJA [former G.S. 50A-18.]

Subsections (b) and (c) merely provide that modern modes of communication are permissible in the taking of testimony and the transmittal of documents. See UIFSA § 316.

OFFICIAL COMMENT

This section is the heart of judicial cooperation provision of this Act. It provides mechanisms for courts to cooperate with each other in order to decide cases in an efficient manner without causing undue expense to the parties. Courts may request assistance from courts of other States and may assist courts of other States.

The provision on the assessment of costs for travel provided in the UCCJA § 19 [former G.S. 50A-19] has been changed. The UCCJA provided that the costs may be assessed against the parties or the State or county. Assessment of costs against a government entity in a case where the government is not involved is inappropriate and therefore that provision has been removed. In addition, if the State is involved as a party, assessment of costs and expenses against the State must be authorized by other law. It should be noted that the term “expenses” means out-of-pocket costs. Overhead costs should not be assessed as expenses.

No other substantive changes have been made. The term “social study” as used in the UCCJA was replaced with the modern term: “custody evaluation.” The Act does not take a position on the admissibility of a custody evaluation that was conducted in another State. It merely authorizes a court to seek assistance of, or render assistance to, a court of another State.

This section combines the text of Sections 19-22 of the UCCJA [former G.S. 50A-19 to 50A-22.]

OFFICIAL COMMENT

This section provides mandatory jurisdictional rules for the original child custody proceeding. It generally continues the provisions of the UCCJA § 3 [former G.S. 50A-3.] However, there have been a number of changes to the jurisdictional bases.

OFFICIAL COMMENT

1. Home State Jurisdiction.  The jurisdiction of the home State has been prioritized over other jurisdictional bases.  Section 3 of the UCCJA [former G.S. 50A-3] provided four independent and concurrent bases of jurisdiction.  The PKPA provides that full faith and credit can only be given to an initial custody determination of a “significant connection” State when there is no home State. This Act prioritizes home state jurisdiction in the same manner as the PKPA thereby eliminating any potential conflict between the two acts.

The six-month extended home state provision of subsection (a)(1) has been modified slightly from the UCCJA. The UCCJA provided that home state jurisdiction continued for six months when the child had been removed by a person seeking the child’s custody or for other reasons and a parent or a person acting as a parent continues to reside in the home State. Under this Act, it is no longer necessary to determine why the child has been removed. The only inquiry relates to the status of the person left behind. This change provides a slightly more refined home state standard than the UCCJA or the PKPA, which also requires a determination that the child has been removed “by a contestant or for other reasons.” The scope of the PKPA’s provision is theoretically narrower than this Act. However, the phrase “or for other reasons” covers most fact situations where the child is not in the home State and, therefore, the difference has no substantive effect.

In another sense, the six-month extended home state jurisdiction provision is this Act is narrower than the comparable provision in the PKPA. The PKPA’s definition of extended home State is more expansive because it applies whenever a “contestant” remains in the home State. That class of individuals has been eliminated in this Act. This Act retains the original UCCJA classification of “parent or person acting as parent” to define who must remain for a State to exercise the six-month extended home state jurisdiction. This eliminates the undesirable jurisdictional determinations which would occur as a result of differing state substantive laws on visitation involving grandparents and others. For example, if State A’s law provided that grandparents could obtain visitation with a child after the death of one of the parents, then the grandparents, who would be considered “contestants” under the PKPA, could file a proceeding within six months after the remaining parent moved and have the case heard in State A. However, if State A did not provide that grandparents could seek visitation under such circumstances, the grandparents would not be considered “contestants” and State B where the child acquired a new home State would provide the only forum. This Act bases jurisdiction on the parent and child or person acting as a parent and child relationship without regard to grandparents or other potential seekers of custody or visitation. There is no conflict with the broader provision of the PKPA. The PKPA in § (c)(1) authorizes States to narrow the scope of their jurisdiction.

OFFICIAL COMMENT

2. Significant connection jurisdiction. This jurisdictional basis has been amended in four particulars from the UCCJA. First, the “best interest” language of the UCCJA has been eliminated. This phrase tended to create confusion between the jurisdictional issue and the substantive custody determination. Since the language was not necessary for the jurisdictional issue, it has been removed.

Second, the UCCJA based jurisdiction on the presence of a significant connection between the child and the child’s parents or the child and at least one contestant. This Act requires that the significant connections be between the child, the child’s parents or the child and a person acting as a parent.

Third, a significant connection State may assume jurisdiction only when there is no home State or when the home State decides that the significant connection State would be a more appropriate forum under Section 207 or 208. Fourth, the determination of significant connections has been changed to eliminate the language of “present or future care.” The jurisdictional determination should be made by determining whether there is sufficient evidence in the State for the court to make an informed custody determination. That evidence might relate to the past as well as to the “present or future.”

Emergency jurisdiction has been moved to a separate section. This is to make it clear that the power to protect a child in crisis does not include the power to enter a permanent order for that child except as provided by that section.

Paragraph (a)(3) provides for jurisdiction when all States with jurisdiction under paragraphs (a)(1) and (2) determine that this State is a more appropriate forum. The determination would have to be made by all States with jurisdiction under subsection (a)(1) and (2). Jurisdiction would not exist under this paragraph because the home State determined it is a more appropriate place to hear the case if there is another State that could exercise significant connection jurisdiction under subsection (a)(2).

Paragraph (a)(4) retains the concept of jurisdiction by necessity as found in the UCCJA and in the PKPA. This default jurisdiction only occurs if no other State would have jurisdiction under subsections (a)(1) through (a)(3).

Subsections (b) and (c) clearly State the relationship between jurisdiction under this Act and other forms of jurisdiction. Personal jurisdiction over, or the physical presence of, a parent or the child is neither necessary nor required under this Act. In other words neither minimum contacts nor service within the State is required for the court to have jurisdiction to make a custody determination. Further, the presence of minimum contacts or service within the State does not confer jurisdiction to make a custody determination. Subject to Section 204, satisfaction of the requirements of subsection (a) is mandatory.

The requirements of this section, plus the notice and hearing provisions of the Act, are all that is necessary to satisfy due process. This Act, like the UCCJA and the PKPA is based on Justice Frankfurter’s concurrence in May v. Anderson , 345 U.S. 528 (1953). As pointed out by Professor Bodenheimer, the reporter for the UCCJA, no “workable interstate custody law could be built around [Justice] Burton’s plurality opinion . . . . Bridgette Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand.L.Rev. 1207,1233 (1969). It should also be noted that since jurisdiction to make a child custody determination is subject matter jurisdiction, an agreement of the parties to confer jurisdiction on a court that would not otherwise have jurisdiction under this Act is ineffective.

Legal Periodicals.

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For article, “When Petitioners Seek Custody in Domestic Violence Court and Why We Should Take Them Seriously,” see 47 Wake Forest L. Rev. 935 (2012).

CASE NOTES

Editor’s Note. —

Many of the cases cited below were decided under former G.S. 50A-3.

Applicability. —

G.S. 50A-201 was inapplicable to a petition to terminate a mother’s parental rights as an Arkansas court had addressed custody issues as to the children and had awarded custody to the father. In re N.R.M., 165 N.C. App. 294, 598 S.E.2d 147, 2004 N.C. App. LEXIS 1163 (2004).

Because the statute pertained only to initial custody determinations, and the initial custody order in the case was made by a Virginia court, the statute was inapplicable. In re B.L.H., 239 N.C. App. 52, 767 S.E.2d 905, 2015 N.C. App. LEXIS 20 (2015).

Purpose. —

The former Uniform Child Custody Jurisdiction Act sought to prevent parents from forum shopping their child custody disputes and to assure that these disputes were litigated in the state with which the child and the child’s family had the closest connection. In re Van Kooten, 126 N.C. App. 764, 487 S.E.2d 160, 1997 N.C. App. LEXIS 625 (1997).

Courts which render a custody decree normally retain continuing jurisdiction to modify the decree under local law. Davis v. Davis, 53 N.C. App. 531, 281 S.E.2d 411, 1981 N.C. App. LEXIS 2703 (1981).

Once jurisdiction of the court attaches to a child custody matter, it exists for all time until the cause is fully and completely determined. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

Jurisdiction over Petition Brought by DSS. —

The district court had jurisdiction over the subject matter of petition filed, signed and verified by county division of social services, which alleged that child had been placed with DSS by its mother; that the putative father was unknown; that North Carolina was the home state of the child and no other state had jurisdiction over the child; and that the best interest of the child would be served if the court assumed jurisdiction over him. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

Trial court had jurisdiction to enter an initial child custody order because (1) North Carolina was the child’s home state within six months of the initiation of the proceeding, and (2) the child’s father resided in North Carolina at all relevant times. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228, 2015 N.C. App. LEXIS 989 (2015).

Orders granting the county department of social services (DSS) custody of a child were not void for lack of subject matter jurisdiction, and DSS had standing to file the petition to terminate the mother’s parental rights, because the trial court had “home state” jurisdiction to make an initial child-custody determination regarding the child; the child had lived with the mother in North Carolina during the six months immediately preceding the filing of the juvenile petition. In re S.E., 373 N.C. 360, 838 S.E.2d 328, 2020 N.C. LEXIS 94 (2020).

Since the children had lived with their foster parents for more than six consecutive months immediately preceding the filing of the termination of parental rights petition, the trial court had jurisdiction over the case. In re K.N., 2021-NCSC-98, 378 N.C. 450, 861 S.E.2d 847, 2021- NCSC-98, 2021 N.C. LEXIS 856 (2021).

Trial court had significant connection jurisdiction over the juvenile petition, as both mother and child had a significant connection with North Carolina beyond mere presence in the state, plus substantial evidence was available in the state regarding the child’s care and family history. Mother had been a resident of the state since the child’s birth and two child protective services that investigated the family were located in North Carolina. In re M.R.J., 2021-NCSC-112, 378 N.C. 648, 862 S.E.2d 639, 2021- NCSC-112, 2021 N.C. LEXIS 927 (2021).

As trial court possessed subject matter jurisdiction over the juvenile petition and entered its orders placing the child in the custody of Wake County Human Services (WCHS) in the trial court’s capacity as a court of competent jurisdiction, WCHS had standing under G.S. 7B-1103(a)(3) to file its motion to terminate mother’s parental rights and trial court had jurisdiction to issue the termination of rights order. In re M.R.J., 2021-NCSC-112, 378 N.C. 648, 862 S.E.2d 639, 2021- NCSC-112, 2021 N.C. LEXIS 927 (2021).

Refusal to Assert Jurisdiction Held Proper. —

For case holding trial court properly declined to assert jurisdiction based upon conclusion that another state had assumed jurisdiction as the home state of the children involved in the custody matter in question, see Bhatti v. Bhatti, 98 N.C. App. 493, 391 S.E.2d 201, 1990 N.C. App. LEXIS 423 (1990).

Although the child resided in North Carolina, the court properly declined jurisdiction because the father continued to reside in the state of the court of original jurisdiction; thus, the Florida court retained jurisdiction under the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A. In re Bean, 132 N.C. App. 363, 511 S.E.2d 683, 1999 N.C. App. LEXIS 112 (1999).

Trial Court Erred in Exercising Jurisdiction. —

The trial court in this State erred in exercising its jurisdiction over a custody matter where a proceeding was already pending in an Indiana court and the child had lived in Indiana since 1981, a period of six years. Indiana was exercising jurisdiction in substantial conformity with the former Uniform Child Custody Jurisdiction Act (UCCJA), and North Carolina was required to decline jurisdiction over the custody issue. Lynch v. Lynch, 96 N.C. App. 601, 386 S.E.2d 607, 1989 N.C. App. LEXIS 1111 (1989).

Where an Indiana order, which awarded custody of child living in Indiana to mother, contained no findings of fact that Indiana was child’s home state, or had been her home state within six months before the action was commenced, or that it was in her best interests for Indiana to assume jurisdiction because she had significant connection with the state, a North Carolina trial court erred in concluding that North Carolina must give full faith and credit to the Indiana orders; the Indiana court had not assumed jurisdiction over the custody determination of the child in substantial conformity with this Act. Williams v. Williams, 110 N.C. App. 406, 430 S.E.2d 277, 1993 N.C. App. LEXIS 518 (1993).

North Carolina trial court lacked subject matter jurisdiction over an initial custody determination because a prior custody order was entered in a court in New Jersey. In re J.A.P., 218 N.C. App. 190, 721 S.E.2d 253, 2012 N.C. App. LEXIS 65 (2012).

Trial court lacked jurisdiction to enter an order adjudicating a mother’s son neglected and dependent and placing him in the custody of a department because there was no finding of fact, order, or other indication that the New York court involved in prior protective services had opted not to exercise jurisdiction; there was no finding or conclusion concerning status of the New York court’s jurisdiction or finding that the North Carolina court met the requirements of G.S. 50A-201(a)(1) or G.S. 50A-201(a)(2) such that it could make a modification under G.S. 50A-203. In re E.J., 225 N.C. App. 333, 738 S.E.2d 204, 2013 N.C. App. LEXIS 128 (2013).

Neither before nor after the trial court’s entry of the nonsecure custody orders had there been any custody proceedings instituted or custody orders entered in any state other than North Carolina, and the child had lived in the State with the child’s foster parents since September 2011, and thus North Carolina became the child’s home state such that the trial court possessed jurisdiction to terminate the mother’s parental rights. In re N.T.U., 234 N.C. App. 722, 760 S.E.2d 49, 2014 N.C. App. LEXIS 685 (2014).

It was error for a North Carolina trial court to exercise custody modification jurisdiction because, inter alia, the subject children had no “home state,” as (1) neither the children nor the children’s parents lived in North Carolina at the commencement of the proceedings, nor had the children lived in North Carolina within six months of commencement, (2) the children’s absence from Utah was not temporary, and (3) the children had not lived in Germany or Florida for six consecutive months before commencement. Gerhauser v. Van Bourgondien, 238 N.C. App. 275, 767 S.E.2d 378, 2014 N.C. App. LEXIS 1395 (2014).

It was error for a North Carolina trial court to exercise custody modification jurisdiction because, inter alia, (1) the children and the children’s parents did not live in North Carolina at the proceedings’ commencement, nor was North Carolina the children’s home state within six months of commencement, and (2) no other state was asked to exercise jurisdiction. Gerhauser v. Van Bourgondien, 238 N.C. App. 275, 767 S.E.2d 378, 2014 N.C. App. LEXIS 1395 (2014).

It was error for a North Carolina trial court to exercise custody modification jurisdiction because, inter alia, North Carolina had no significant connection jurisdiction under G.S. 50A-201(a)(2) as litigation in North Carolina did not establish such jurisdiction. Gerhauser v. Van Bourgondien, 238 N.C. App. 275, 767 S.E.2d 378, 2014 N.C. App. LEXIS 1395 (2014).

It was error for a North Carolina trial court to exercise custody modification jurisdiction because, inter alia, North Carolina had no jurisdiction under G.S. 50A-201(a)(3) or (4) as Utah or Florida had not declined their “significant connection” jurisdiction. Gerhauser v. Van Bourgondien, 238 N.C. App. 275, 767 S.E.2d 378, 2014 N.C. App. LEXIS 1395 (2014).

Pursuant to the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act, the trial court had no jurisdiction to consider the Department of Health and Human Services’ (DSS) petition for nonsecure custody and to order that nonsecure custody of the children be granted to DSS on 15 January 2011, because the unresolved Kentucky custody order involving the children served to maintain exclusive jurisdiction in Kentucky. In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123, 2015 N.C. App. LEXIS 520 (2015).

Personal jurisdiction over the nonresident parent is not a requirement under this Chapter. Hart v. Hart, 74 N.C. App. 1, 327 S.E.2d 631, 1985 N.C. App. LEXIS 3389 (1985).

Bald Statement of Jurisdiction, Without Findings Supporting Assertion, Held Error. —

Trial court erred in baldly stating that it had subject matter jurisdiction without making findings supporting its assertion of subject matter jurisdiction of a child custody matter under the North Carolina Uniform Child Custody Jurisdiction Act, G.S. 50A-201, or the Parental Kidnapping Prevention Act, 28 U.S.C.S. § 1738(A). In re J.B., 164 N.C. App. 394, 595 S.E.2d 794, 2004 N.C. App. LEXIS 820 (2004).

Ex Parte Order for Temporary Custody. —

Once the trial court has gained jurisdiction by establishing one of the bases for jurisdiction, it may enter an ex parte order for temporary custody prior to service of process or notice, if the circumstances of the case render it appropriate. Hart v. Hart, 74 N.C. App. 1, 327 S.E.2d 631, 1985 N.C. App. LEXIS 3389 (1985).

Exercise of Jurisdiction Where Foreign Order Is Pending or Has Been Entered. —

When a North Carolina court considered jurisdiction in a custody proceeding, and a prior order was pending or had been entered by a court of another state, the North Carolina court could exercise jurisdiction if it determined (1) that the court of the other state no longer had jurisdiction and North Carolina had jurisdiction under one of the four alternatives listed in former G.S. 50A-3, or (2) the court of the other state did not exercise jurisdiction in substantial conformity with the former UCCJA and North Carolina had jurisdiction pursuant to former G.S. 50A-3. Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444, 1985 N.C. App. LEXIS 4397 (1985).

Former G.S. 50A-3(a)(2) of this section essentially conferred jurisdiction where it was in the child’s best interest, because the child and at least one parent had significant ties to the State, and where substantial evidence pertaining to the child’s present or future well-being and activities existed within the State. Brookshire v. Brookshire, 89 N.C. App. 48, 365 S.E.2d 307, 1988 N.C. App. LEXIS 229 (1988).

Service of Process on Defendant in State Sufficient to Establish Jurisdiction. —

The singular fact that defendant was served with process while present within this State was sufficient to establish in-personam jurisdiction over him for purposes of a child custody and support action. Brookshire v. Brookshire, 89 N.C. App. 48, 365 S.E.2d 307, 1988 N.C. App. LEXIS 229 (1988).

Where the record had no evidence to show a trial court had subject matter jurisdiction over a child custody dispute, the appellate court vacated the order and remanded the case for the making of appropriate findings of fact. Foley v. Foley, 156 N.C. App. 409, 576 S.E.2d 383, 2003 N.C. App. LEXIS 110 (2003).

Exercise of Jurisdiction Upheld. —

Where the oldest two of the three minor children of the parties had been born in North Carolina, both plaintiff and defendant grew up in the State, both maternal and paternal grandparents of the minor children resided within the State, and plaintiff and the minor children had moved to the State from Ohio in June, 1985, with the intention of becoming permanent residents, and at the time of the entry of the order had become permanent residents of the State, the district court properly exercised subject matter jurisdiction over custody and support action. Brookshire v. Brookshire, 89 N.C. App. 48, 365 S.E.2d 307, 1988 N.C. App. LEXIS 229 (1988).

Where the minor child resided in North Carolina for about one year after birth, North Carolina was the only state where the parties and the minor child lived as a family unit and, although there are a number of witnesses that reside in New Hampshire, there are numerous other witnesses who reside in North Carolina, district court’s order that North Carolina was the most appropriate and convenient forum was appropriate. Westneat v. Westneat, 113 N.C. App. 247, 437 S.E.2d 899, 1994 N.C. App. LEXIS 12 (1994).

The trial court had subject matter jurisdiction over the custody of a child, where the father’s former companion sought custody of the child as the child had lived with the companion in North Carolina until a month before her complaint was filed. Ellison v. Ramos, 130 N.C. App. 389, 502 S.E.2d 891, 1998 N.C. App. LEXIS 946 (1998).

In the child custody dispute where the mother lived in Maryland and the father lived in North Carolina, the North Carolina trial court had jurisdiction pursuant to G.S. 50A-201, because the children had lived in North Carolina for six months prior to the custody action being filed, and as a result, it was their home state under G.S. 50A-102(7). David v. Ferguson, 153 N.C. App. 482, 571 S.E.2d 230, 2002 N.C. App. LEXIS 1176 (2002).

Trial court properly found that it had jurisdiction to enter custody and termination orders under circumstances in which, at the time of the petition, the older child was in the custody of the department in North Carolina and had been for 18 months, the mother had earlier moved to North Carolina with the older child, at the date of the petition the mother was incarcerated in North Carolina, and the younger child had no contact with any other state; because the trial court asserted its jurisdiction in the order and the evidence supported its determination, the trial court properly exercised jurisdiction. In re T.J.D.W., 182 N.C. App. 394, 642 S.E.2d 471, 2007 N.C. App. LEXIS 672, aff'd, 362 N.C. 84, 653 S.E.2d 143, 2007 N.C. LEXIS 1225 (2007).

North Carolina was the child’s home state pursuant to the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction and Enforcement Act because the child resided with the mother for a period of more than six months immediately preceding the commencement of the custody proceeding; therefore, North Carolina had jurisdiction to make a custody determination. Williams v. Walker, 185 N.C. App. 393, 648 S.E.2d 536, 2007 N.C. App. LEXIS 1826 (2007).

North Carolina had jurisdiction over a custody case involving a child who had resided in North Carolina with his paternal grandparents for at least six months prior to the filing of the custody action, even though the trial court’s findings did not expressly track the language in G.S. 50A-102(7). Because a Florida order on child support did not provide for legal custody, physical custody, or visitation, it was not a child custody determination, allowing North Carolina to properly exercise jurisdiction. Powers v. Wagner, 213 N.C. App. 353, 716 S.E.2d 354, 2011 N.C. App. LEXIS 1471 (2011).

Trial court had subject matter jurisdiction to terminate a father’s parental rights because North Carolina was the child’s home State since she lived there with the mother, and Virginia no longer possessed exclusive, continuing subject matter jurisdiction; neither the father, the mother, nor the child actually resided in Virginia at the time of the filing of the motion to terminate the father’s parental rights. In re B.L.H., 239 N.C. App. 52, 767 S.E.2d 905, 2015 N.C. App. LEXIS 20 (2015).

North Carolina court had jurisdiction to modify an Illinois custody order because (1) the North Carolina court had jurisdiction to enter an initial custody order due to an Illinois judge’s transfer of the case to North Carolina since the mother had not lived in Illinois for a number of years and the child’s alleged abuse occurred in North Carolina, tantamount to finding North Carolina was the more appropriate forum, (2) the record showed the mother and child had a significant connection with North Carolina other than mere physical presence, and (3) substantial evidence was available in North Carolina as the child’s alleged sexual assault and other acts of neglect by the mother occurred in North Carolina, and the Illinois court found North Carolina was a more convenient forum. In re T.R., 250 N.C. App. 386, 792 S.E.2d 197, 2016 N.C. App. LEXIS 1161 (2016).

North Carolina was the home state of the child and thus the trial court had jurisdiction to make an initial determination, plus none of the relevant persons were residents of Florida at any time relevant to the jurisdictional analysis; thus, the conditions for modification jurisdiction were met, and the trial court had jurisdiction to consider plaintiff’s action to modify the Florida order and to enter the various visitation and other orders entered in relation to the issue of the child’s custody. Quevedo-Woolf v. Overholser, 261 N.C. App. 387, 820 S.E.2d 817, 2018 N.C. App. LEXIS 946 (2018).

Trial court’s orders granting the county department of social services (DSS) custody of a child were not void for lack of subject matter jurisdiction because it was reasonable to infer that Oklahoma did not have continuing jurisdiction; the trial court found only another child was removed from the mother’s custody by child protective services in Oklahoma, and the mother stipulated that the child protective services matter in Oklahoma had been closed, a fact she had a duty to disclose. In re S.E., 373 N.C. 360, 838 S.E.2d 328, 2020 N.C. LEXIS 94 (2020).

Trial court had exclusive, original jurisdiction over the termination of a parental rights case regarding a child because it properly determined that North Carolina was the home state for the child; the child was born in North Carolina and lived with foster parents in the State for the six months immediately before the filing of the termination of parental rights petition, and for the entirety of her life, the child lived in North Carolina. In re N.P., 376 N.C. 729, 855 S.E.2d 203, 2021- NCSC-11, 2021 N.C. LEXIS 173 (2021).

Trial court properly exercised subject matter jurisdiction because regardless of any temporary emergency jurisdiction exercised during the initial period of the child’s life or during the time leading up to her adjudication as a dependent and neglected juvenile, it had exclusive, original jurisdiction over all petitions and motions concerning termination of parental rights pursuant to the statute and in conformance with the Uniform Child-Custody Jurisdiction and Enforcement Act. In re N.P., 376 N.C. 729, 855 S.E.2d 203, 2021- NCSC-11, 2021 N.C. LEXIS 173 (2021).

Trial court had jurisdiction to enter a custody order because the action was commenced in North Carolina; even though the father, mother, and child moved out of the State shortly after the initiation of the suit, North Carolina retained its jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) until the conclusion of the matter, and that continuity promoted the UCCJEA’s purpose of avoiding jurisdictional competition and conflict with courts of other States. Waly v. Alkamary, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

Trial court had jurisdiction to enter a custody order because the action was commenced in North Carolina; even though the father, mother, and child moved out of the State shortly after the initiation of the suit, North Carolina retained its jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) until the conclusion of the matter, and that continuity promoted the UCCJEA’s purpose of avoiding jurisdictional competition and conflict with courts of other States. Waly v. Alkamary, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

Trial court had jurisdiction to modify an out-of-state child custody order because North Carolina was the home state as the father and the children lived in North Carolina for at least six months before the custody proceedings; the New York child custody order specifically stated it was relinquishing jurisdiction; and the mother acquiesced to the trial court’s jurisdiction. Malone-Pass v. Schultz, 868 S.E.2d 327, 2021- NCCOA-656, 2021 N.C. App. LEXIS 680 (Ct. App. 2021).

Exercise of Jurisdiction Declined. —

Vermont family court order, which directed custody to a father was upheld, and a North Carolina court properly declined jurisdiction, where there was no question that the parties’ minor children were living in Vermont for the required six months prior to the commencement of the mother’s custody proceeding in North Carolina. Vermont qualified as the children’s home state under North Carolina and Vermont law despite a six week absence from Vermont to North Carolina, which was deemed a temporary absence insufficient to prevent the conclusion that Vermont was the home state. Chick v. Chick, 164 N.C. App. 444, 596 S.E.2d 303, 2004 N.C. App. LEXIS 1036 (2004).

In an abuse and neglect action, the evidence was insufficient to support jurisdiction as to the father’s biological children as neither child had lived in North Carolina for at least six months immediately before the commencement of the proceedings and no other basis for jusdiction was provided. In re M.G., 187 N.C. App. 536, 653 S.E.2d 581, 2007 N.C. App. LEXIS 2573 (2007), cert. dismissed, 666 S.E.2d 120, 2008 N.C. LEXIS 706 (2008), rev'd in part, 363 N.C. 570, 681 S.E.2d 290, 2009 N.C. LEXIS 731 (2009), aff'd in part, rev'd in part, 2010 N.C. App. LEXIS 958 (N.C. Ct. App. June 15, 2010).

Trial court did not err in dismissing the father’s complaint for lack of subject-matter jurisdiction after finding that it did not have subject-matter jurisdiction over the older child because North Carolina was not her home state. Halili v. Ramnishta, 273 N.C. App. 235, 848 S.E.2d 542, 2020 N.C. App. LEXIS 638 (2020).

Emergency Jurisdiction. —

The exercise of emergency jurisdiction confers authority to enter temporary protective orders only. In re Van Kooten, 126 N.C. App. 764, 487 S.E.2d 160, 1997 N.C. App. LEXIS 625 (1997).

The emergency conditions giving rise to jurisdiction to enter a temporary order under former G.S. 50A-3(a)(3) may exist either in this State, or in the state that entered the custody decrees. In re Van Kooten, 126 N.C. App. 764, 487 S.E.2d 160, 1997 N.C. App. LEXIS 625 (1997).

In a proceeding by the Department of Social Services seeking protective custody of a child based on evidence of sexual abuse by the father, the trial court had authority under the emergency jurisdiction provision of former G.S. 50A-3(a)(3)(ii) to enter a temporary nonsecure custody order. In re Malone, 129 N.C. App. 338, 498 S.E.2d 836, 1998 N.C. App. LEXIS 516 (1998).

Trial court properly exercised subject-matter jurisdiction regarding a father’s parental rights on a temporary emergency basis because his children lived in North Carolina for more than a year prior to the hearing on pre-adjudication, adjudication, and disposition, and thus, North Carolina qualified as their “home state”; once a Michigan court determined North Carolina would be a more convenient forum and relinquished jurisdiction over the children, the trial court could assert jurisdiction. In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598, 2017 N.C. App. LEXIS 545 (2017).

North Carolina court had emergency jurisdiction in custody matter where defendant father’s family made numerous threats to abduct children and take them to Turkey. Tataragasi v. Tataragasi, 124 N.C. App. 255, 477 S.E.2d 239, 1996 N.C. App. LEXIS 1056 (1996).

North Carolina decree modifying a prior custody decree by a Virginia court was improper under the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A, where the Virginia court had continuing jurisdiction and had not declined to exercise it. Meade v. Meade, 650 F. Supp. 205, 1986 U.S. Dist. LEXIS 27915 (M.D.N.C. 1986), aff'd, 812 F.2d 1473, 1987 U.S. App. LEXIS 3324 (4th Cir. 1987).

When Petitions for Modification of Foreign Decree to Be Addressed to Foreign Court. —

All petitions for modification of a custody decree under local law are to be addressed to the prior state if that state has sufficient contact with the case to satisfy this section. Davis v. Davis, 53 N.C. App. 531, 281 S.E.2d 411, 1981 N.C. App. LEXIS 2703 (1981).

Effect of Foreign Decree Not in Compliance with This Section. —

Where the record does not show that a foreign court assumed jurisdiction under the standards set forth in this section, its decree is null and void. Davis v. Davis, 53 N.C. App. 531, 281 S.E.2d 411, 1981 N.C. App. LEXIS 2703 (1981).

Severability of Custody Action from Divorce Proceeding. —

The portion of plaintiff’s complaint seeking custody of his minor son constituted a separate action severable from his divorce proceeding, so that dismissal of the divorce action for lack of subject matter jurisdiction did not result in dismissal of the custody action, and the trial court was authorized to assert subject matter jurisdiction over the custody portion of the case where the child was physically within the State. Lynch v. Lynch, 302 N.C. 189, 274 S.E.2d 212, 1981 N.C. LEXIS 1045 (1981).

Physical Presence, Generally. —

It is a generally accepted principle that the courts of the state in which a minor child is physically present have jurisdiction consistent with due process to adjudicate a custody dispute involving that child. Lynch v. Lynch, 302 N.C. 189, 274 S.E.2d 212, 1981 N.C. LEXIS 1045 (1981).

Proper Determination of Home State. —

Mother and children had significant connection to North Carolina and there was substantial evidence in North Carolina. Therefore, North Carolina court correctly determined that North Carolina, not Georgia, was home state. Court did not err in assuming jurisdiction and modifying Georgia custody decree, even though children resided in Georgia and there was no evidence that Georgia had declined jurisdiction. Pheasant v. McKibben, 100 N.C. App. 379, 396 S.E.2d 333, 1990 N.C. App. LEXIS 985 (1990).

Where children had lived in North Carolina continuously from March 1987 until March 1989 when custody action was filed except for the 10-month period during which the children resided with defendant in Georgia pursuant to the Georgia temporary custody decree and the plaintiff resided in North Carolina for the entire period, the trial court correctly determined that North Carolina was the home state, thereby meeting one of the bases of jurisdiction under this section. Pheasant v. McKibben, 100 N.C. App. 379, 396 S.E.2d 333, 1990 N.C. App. LEXIS 985 (1990).

Home state jurisdiction existed over a county department of social service’s petition to terminate parental rights to two minor children since the trial court had emergency jurisdiction to enter the initial nonsecure custody orders, the children and mother had been physically in North Carolina for two years by the time of the filing of the petition and motion for termination of parental rights, there had been no prior custody proceedings or court orders entered with regard to the children in another state, and the father’s residency in another state did not change the children’s home state. In re E.X.J., 191 N.C. App. 34, 662 S.E.2d 24, 2008 N.C. App. LEXIS 1172 (2008), aff'd, 363 N.C. 9, 672 S.E.2d 19, 2009 N.C. LEXIS 110 (2009).

Where a father moved with a juvenile to North Carolina and had remained there for about four years prior to the petition alleging the juvenile was abused, neglected, and dependent, the father’s travel between Texas and North Carolina over a period of about four months did not defeat a finding that North Carolina was the juvenile’s “home state.” In re J.W.S., 194 N.C. App. 439, 669 S.E.2d 850, 2008 N.C. App. LEXIS 2268 (2008).

North Carolina trial court did not err in denying defendant mother’s motion to dismiss a custody petition for lack of subject matter jurisdiction where the mother and the parties’ minor children lived in Japan because North Carolina was the home state of the children at the commencement of the custody action under the Uniform Child-Custody Jurisdiction and Enforcement Act, and thus the trial court had subject matter jurisdiction to make the initial child-custody determination; children’s absence from North Carolina was a temporary absence, a conclusion supported by the residency of the children in North Carolina for over two years before their departure to Japan, coupled with the evidence of the father’s intent that he and his family would return to North Carolina. Hammond v. Hammond, 209 N.C. App. 616, 708 S.E.2d 74, 2011 N.C. App. LEXIS 317 (2011).

Physical Presence of Child Coupled with Emergency. —

To meet the requirements of former G.S. 50A-3(a)(3)(ii) and former G.S. 50A-14(a), the following three questions must be answered affirmatively: (1) Did the foreign court lack jurisdiction under jurisdictional prerequisites similar to those of the former Uniform Child Custody Jurisdiction Act or has the foreign court declined to exercise jurisdiction to modify the decree? (2) Was the child physically present in North Carolina? (3) Did an emergency situation exist? Naputi v. Naputi, 67 N.C. App. 351, 313 S.E.2d 179, 1984 N.C. App. LEXIS 3044 (1984).

Findings held to sufficiently establish that North Carolina was the home state of child and to establish that the child and at least one parent had a significant connection with North Carolina. Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444, 1985 N.C. App. LEXIS 4397 (1985).

Significant Connection. —

Where children resided in North Carolina for all but ten months of the two-year period prior to this action and that plaintiff resided in North Carolina for the entire period, the children and plaintiff had a “significant connection” with North Carolina, and there was substantial evidence regarding the children’s “present or future care, protection, training, and personal relationships” in North Carolina. Pheasant v. McKibben, 100 N.C. App. 379, 396 S.E.2d 333, 1990 N.C. App. LEXIS 985 (1990).

In an action for child support, child support arrearages and child custody where the child and plaintiff had resided in North Carolina since 1982, it was within the best interest of the welfare of the minor child to consider North Carolina the home state of the minor child, and for the court to assume jurisdiction, since the minor child and at least one parent had significant connections with North Carolina. Shores v. Shores, 91 N.C. App. 435, 371 S.E.2d 747, 1988 N.C. App. LEXIS 886 (1988).

North Carolina court had child custody jurisdiction under G.S. 50A-201(a)(2) because (1) no state was the child’s home state and (2) the child, the child’s parents, and the child’s grandparents, who were acting as parents, lived in North Carolina, and substantial evidence about the child’s care, protection, training, and personal relationships was available in North Carolina. In re T.N.G., 244 N.C. App. 398, 781 S.E.2d 93, 2015 N.C. App. LEXIS 1041 (2015).

Finding that husband “is on active duty with the United States Marine Corps and is stationed at Camp Lejeune, North Carolina” is sufficient to satisfy the home state rule requirement that a parent or person acting as parent continues to live in this State. Hart v. Hart, 74 N.C. App. 1, 327 S.E.2d 631, 1985 N.C. App. LEXIS 3389 (1985).

Fifteen-Month Residence of Child Held Sufficient for Jurisdiction. —

Evidence was sufficient to support the court’s exercise of jurisdiction pursuant to either former G.S. 50A-3(a)(1) or G.S. 50A-3(2) of this section, where the minor child had resided with the plaintiffs for an almost continuous 15-month period immediately preceding the commencement of the action. This was sufficient to qualify North Carolina as the minor child’s home state. The child’s brief visit to Texas during this time period was not sufficient to prevent such a conclusion. Plemmons v. Stiles, 65 N.C. App. 341, 309 S.E.2d 504, 1983 N.C. App. LEXIS 3470 (1983).

Findings of Court Where Child Is Improperly Retained in This State. —

Even when the district court has jurisdiction over the person of the out-of-state parent in an action to modify a foreign custody decree, it has no authority to exercise its jurisdiction without making findings of fact which support the conclusion that such exercise is required in the interest of the child, if the record shows that the parent seeking the modification has improperly retained the child. Jerson v. Jerson, 68 N.C. App. 738, 315 S.E.2d 522, 1984 N.C. App. LEXIS 3596 (1984).

A recitation of the trial court’s order that it was in the best interest of child who was improperly retained by mother in this State that it assume jurisdiction did not comply with the stated policy of the former UCCJA or with the case law, as it did not contain specific facts. Jerson v. Jerson, 68 N.C. App. 738, 315 S.E.2d 522, 1984 N.C. App. LEXIS 3596 (1984).

The quality of evidence required under former G.S. 50A-3 goes beyond the standard of more than a scintilla or any competent evidence. Holland v. Holland, 56 N.C. App. 96, 286 S.E.2d 895, 1982 N.C. App. LEXIS 2305 (1982).

“Substantial Evidence” Required. —

To be able to enter a well-founded custody order, the trial court must look beyond the declarations of competing parents, seeking to find the real circumstances of the child’s welfare. The “substantial” evidence required by former G.S. 50A-3, therefore, must be such as would enable the trial court to look to sources within the State that could address each of the statutory aspects of the child’s interest, care, protection, training, and personal relationships. Holland v. Holland, 56 N.C. App. 96, 286 S.E.2d 895, 1982 N.C. App. LEXIS 2305 (1982).

Parental Rights Proceedings. —

While a determination of jurisdiction over child custody matters will precede a determination of jurisdiction over parental rights, it does not supplant the parental rights proceedings; the language of [former] G.S. 7A-289.22(4) is that it shall not be “used to circumvent” Chapter 50A (see now Article 2 of this chapter), not that it shall “be in conformity with” Chapter 50A (see now Article 2 of this chapter). In re Leonard, 77 N.C. App. 439, 335 S.E.2d 73, 1985 N.C. App. LEXIS 4084 (1985).

Temporary Nonsecure Order. —

The trial court had jurisdiction to enter a temporary nonsecure custody order where there was a reasonable factual basis to believe that one child had been sexually abused and hospitalized for depression and the other child had been physically abused and was hospitalized for stress disorder. In re Van Kooten, 126 N.C. App. 764, 487 S.E.2d 160, 1997 N.C. App. LEXIS 625 (1997).

OFFICIAL COMMENT

This is a new section addressing continuing jurisdiction. Continuing jurisdiction was not specifically addressed in the UCCJA. Its absence caused considerable confusion, particularly because the PKPA, § 1738(d), requires other States to give Full Faith and Credit to custody determinations made by the original decree State pursuant to the decree State’s continuing jurisdiction so long as that State has jurisdiction under its own law and remains the residence of the child or any contestant.

This section provides the rules of continuing jurisdiction and borrows from UIFSA as well as recent UCCJA case law. The continuing jurisdiction of the original decree State is exclusive. It continues until one of two events occurs:

1. If a parent or a person acting as a parent remains in the original decree State, continuing jurisdiction is lost when neither the child, the child and a parent, nor the child and a person acting as a parent continue to have a significant connection with the original decree State and there is no longer substantial evidence concerning the child’s care, protection, training and personal relations in that State.  In other words, even if the child has acquired a new home State, the original decree State retains exclusive, continuing jurisdiction, so long as the general requisites of the “substantial connection” jurisdiction provisions of Section 201 are met.  If the relationship between the child and the person remaining in the State with exclusive, continuing jurisdiction becomes so attenuated that the court could no longer find significant connections and substantial evidence, jurisdiction would no longer exist.
2. Continuing jurisdiction is lost when the child, the child’s parents, and any person acting as a parent no longer reside in the original decree State.  The exact language of subparagraph (a)(2) was the subject of considerable debate. Ultimately the Conference settled on the phrase that “a court of this State or a court of another State determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this State” to determine when the exclusive, continuing jurisdiction of a State ended.  The phrase is meant to be identical in meaning to the language of the PKPA which provides that full faith and credit is to be given to custody determinations made by a State in the exercise of its continuing jurisdiction when that “State remains the residence of . . . .”  The phrase is also the equivalent of the language “continues to reside” which occurs in UIFSA § 205(a)(1) to determine the exclusive, continuing jurisdiction of the State that made a support order.  The phrase “remains the residence of” in the PKPA has been the subject of conflicting case law.  It is the intention of this Act that paragraph (a)(2) of this section means that the named persons no longer continue to actually live within the State.  Thus, unless a modification proceeding has been commenced, when the child, the parents, and all persons acting as parents physically leave the State to live elsewhere, the exclusive, continuing jurisdiction ceases.

The use of the phrase “a court of this State” under subsection (a)(1) makes it clear that the original decree State is the sole determinant of whether jurisdiction continues. A party seeking to modify a custody determination must obtain an order from the original decree State stating that it no longer has jurisdiction.

The phrase “do not presently reside” is not used in the sense of a technical domicile. The fact that the original determination State still considers one parent a domiciliary does not prevent it from losing exclusive, continuing jurisdiction after the child, the parents, and all persons acting as parents have moved from the State.

If the child, the parents, and all persons acting as parents have all left the State which made the custody determination prior to the commencement of the modification proceeding, considerations of waste of resources dictate that a court in State B, as well as a court in State A, can decide that State A has lost exclusive, continuing jurisdiction.

The continuing jurisdiction provisions of this section are narrower than the comparable provisions of the PKPA. That statute authorizes continuing jurisdiction so long as any “contestant” remains in the original decree State and that State continues to have jurisdiction under its own law. This Act eliminates the contestant classification. The Conference decided that a remaining grandparent or other third party who claims a right to visitation, should not suffice to confer exclusive, continuing jurisdiction on the State that made the original custody determination after the departure of the child, the parents and any person acting as a parent. The significant connection to the original decree State must relate to the child, the child and a parent, or the child and a person acting as a parent. This revision does not present a conflict with the PKPA. The PKPA’s reference in § 1738(d) to § 1738(c)(1) recognizes that States may narrow the class of cases that would be subject to exclusive, continuing jurisdiction. However, during the transition from the UCCJA to this Act, some States may continue to base continuing jurisdiction on the continued presence of a contestant, such as a grandparent. The PKPA will require that such decisions be enforced. The problem will disappear as States adopt this Act to replace the UCCJA.

Jurisdiction attaches at the commencement of a proceeding. If State A had jurisdiction under this section at the time a modification proceeding was commenced there, it would not be lost by all parties moving out of the State prior to the conclusion of proceeding. State B would not have jurisdiction to hear a modification unless State A decided that State B was more appropriate under Section 207.

Exclusive, continuing jurisdiction is not reestablished if, after the child, the parents, and all persons acting as parents leave the State, the non-custodial parent returns. As subsection (b) provides, once a State has lost exclusive, continuing jurisdiction, it can modify its own determination only if it has jurisdiction under the standards of Section 201. If another State acquires exclusive continuing jurisdiction under this section, then its orders cannot be modified even if this State has once again become the home State of the child.

In accordance with the majority of UCCJA case law, the State with exclusive, continuing jurisdiction may relinquish jurisdiction when it determines that another State would be a more convenient forum under the principles of Section 207.

CASE NOTES

Jurisdiction Over Action. —

Trial court properly granted a mother’s motion pursuant to G.S. 50-13.7 to modify a custody order and granted primary custody of the parties’ two children to the mother; the trial court properly found a substantial change in circumstances based on the father’s interference with the mother’s relationship with the children, the trial court had jurisdiction pursuant to G.S. 50A-202(a), and the trial court properly denied the father’s motions pursuant to G.S. 1A-1, Rule 59 and G.S. 1A-1, Rule 60 to stay the order and for a new trial. Senner v. Senner, 161 N.C. App. 78, 587 S.E.2d 675, 2003 N.C. App. LEXIS 1976 (2003).

North Carolina court did not have subject matter jurisdiction over the proceedings to terminate a mother’s parental rights under G.S. 50A-203, although North Carolina was the home state of the children, because: (1) There was no order stating that the Arkansas court that had awarded custody of the children to the father no longer had jurisdiction; (2) The Arkansas court had entered an order directing the father to return to Arkansas after the termination proceedings were filed; and (3) The mother resided in Arkansas, so Arkansas did not lose continuing jurisdiction based on G.S. 50A-202(a)(2). In re N.R.M., 165 N.C. App. 294, 598 S.E.2d 147, 2004 N.C. App. LEXIS 1163 (2004).

Trial court did not lack subject matter jurisdiction to enter an order terminating the father’s parental rights because the child and the child’s custodial guardians resided in Alabama when the petition was filed because the trial court had exclusive, continuing jurisdiction pursuant to G.S. 50A-202(a), and the guardians, who had custody of the child, had standing to file the petition pursuant to G.S. 7B-1103(a)(3). In re H.L.A.D., 184 N.C. App. 381, 646 S.E.2d 425, 2007 N.C. App. LEXIS 1482 (2007), aff'd, 362 N.C. 170, 655 S.E.2d 712, 2008 N.C. LEXIS 25 (2008).

Where a New York court granted the original order of custody of the juvenile, New York did not lose jurisdiction under G.S. 50A-202(a)(1), because New York never entered an order directed to the trial court relinquishing jurisdiction over the issue of custody of the juvenile. In re J.W.S., 194 N.C. App. 439, 669 S.E.2d 850, 2008 N.C. App. LEXIS 2268 (2008).

Trial court had subject matter jurisdiction to terminate a father’s parental rights because North Carolina was the child’s home State since she lived there with the mother, and Virginia no longer possessed exclusive, continuing subject matter jurisdiction; neither the father, the mother, nor the child actually resided in Virginia at the time of the filing of the motion to terminate the father’s parental rights. In re B.L.H., 239 N.C. App. 52, 767 S.E.2d 905, 2015 N.C. App. LEXIS 20 (2015).

Trial court did not have jurisdiction, under G.S. 50A-203, to modify a Texas custody order because, while the court had jurisdiction to enter an initial custody order, (1) the Texas court did not find that court no longer has exclusive, continuing jurisdiction or that a North Carolina court was a more convenient forum, and (2) the trial court found the child’s mother resided in Texas. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228, 2015 N.C. App. LEXIS 989 (2015).

Florida lost exclusive continuing jurisdiction over the child because the trial court in North Carolina determined that the child, the parents, and the child’s grandmother did not presently reside in Florida at any time relevant to plaintiff’s action. Quevedo-Woolf v. Overholser, 261 N.C. App. 387, 820 S.E.2d 817, 2018 N.C. App. LEXIS 946 (2018).

Trial court erred in concluding that it had subject matter jurisdiction over the action and that Tennessee also had appropriate subject matter jurisdiction over the action because North Carolina no longer had subject matter jurisdiction; Tennessee had authority to exercise jurisdiction to modify visitation because none of the parties resided in North Carolina. In re C.M.B., 826 S.E.2d 810, 2019 N.C. App. LEXIS 307 (Ct. App. 2019).

Trial court was not exercising modification jurisdiction because it was not considering modifying a child-custody determination made by a court of another state; after the father’s commencement of the custody action, North Carolina retained its “initial determination” jurisdiction, and because North Carolina was the “home state” of the child for more than six months before the father filed the custody action, North Carolina had jurisdiction to enter the permanent custody order. Waly v. Alkamary, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

Trial court was not exercising modification jurisdiction because it was not considering modifying a child-custody determination made by a court of another state; after the father’s commencement of the custody action, North Carolina retained its “initial determination” jurisdiction, and because North Carolina was the “home state” of the child for more than six months before the father filed the custody action, North Carolina had jurisdiction to enter the permanent custody order. Waly v. Alkamary, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

Temporary Emergency Jurisdiction. —

Trial court properly exercised subject-matter jurisdiction regarding a father’s parental rights on a temporary emergency basis because his children lived in North Carolina for more than a year prior to the hearing on pre-adjudication, adjudication, and disposition, and thus, North Carolina qualified as their “home state”; once a Michigan court determined North Carolina would be a more convenient forum and relinquished jurisdiction over the children, the trial court could assert jurisdiction. In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598, 2017 N.C. App. LEXIS 545 (2017).

To the extent that a father’s due process rights were frustrated or denied, they were denied in Michigan, not North Carolina, because it was the Michigan court that determined it would relinquish jurisdiction to North Carolina, as was contemplated by the statute. In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598, 2017 N.C. App. LEXIS 545 (2017).

Trial Court Erred in Exercising Jurisdiction. —

Trial court lacked jurisdiction to enter an order adjudicating a mother’s son neglected and dependent and placing him in the custody of a department because there was no finding of fact, order, or other indication that the New York court involved in prior protective services had opted not to exercise jurisdiction; there was no finding or conclusion concerning status of the New York court’s jurisdiction or finding that the North Carolina court met the requirements of G.S. 50A-201(a)(1) or G.S. 50A-201(a)(2) such that it could make a modification under G.S. 50A-203. In re E.J., 225 N.C. App. 333, 738 S.E.2d 204, 2013 N.C. App. LEXIS 128 (2013).

It was error for a North Carolina trial court to exercise custody modification jurisdiction because, inter alia, (1) the children and the children’s parents did not live in North Carolina at the proceedings’ commencement, nor was North Carolina the children’s home state within six months of commencement, and (2) no other state was asked to exercise jurisdiction. Gerhauser v. Van Bourgondien, 238 N.C. App. 275, 767 S.E.2d 378, 2014 N.C. App. LEXIS 1395 (2014).

It was error for a North Carolina trial court to exercise custody modification jurisdiction because, inter alia, the subject children had no “home state,” as (1) neither the children nor the children’s parents lived in North Carolina at the commencement of the proceedings, nor had the children lived in North Carolina within six months of commencement, (2) the children’s absence from Utah was not temporary, and (3) the children had not lived in Germany or Florida for six consecutive months before commencement. Gerhauser v. Van Bourgondien, 238 N.C. App. 275, 767 S.E.2d 378, 2014 N.C. App. LEXIS 1395 (2014).

It was error for a North Carolina trial court to exercise custody modification jurisdiction because, inter alia, North Carolina had no significant connection jurisdiction under G.S. 50A-201(a)(2) as litigation in North Carolina did not establish such jurisdiction. Gerhauser v. Van Bourgondien, 238 N.C. App. 275, 767 S.E.2d 378, 2014 N.C. App. LEXIS 1395 (2014).

It was error for a North Carolina trial court to exercise custody modification jurisdiction because, inter alia, North Carolina had no jurisdiction under G.S. 50A-201(a)(3) or (4) as Utah or Florida had not declined their “significant connection” jurisdiction. Gerhauser v. Van Bourgondien, 238 N.C. App. 275, 767 S.E.2d 378, 2014 N.C. App. LEXIS 1395 (2014).

District court erred in terminating a father’s parental rights because it never acquired subject matter jurisdiction; without an order from the New Jersey court relieving itself of jurisdiction, the district court lacked any basis to conclude it acquired subject matter jurisdiction over the case. In re T.E.N., 252 N.C. App. 461, 798 S.E.2d 792, 2017 N.C. App. LEXIS 218 (2017).

Recusal Did Not Affect Continuing Jurisdiction. —

Judge’s recusal did not affect the continuing jurisdiction of the trial court over the subject matter of this custody action. Quevedo-Woolf v. Overholser, 261 N.C. App. 387, 820 S.E.2d 817, 2018 N.C. App. LEXIS 946 (2018).

OFFICIAL COMMENT

This section complements Section 202 and is addressed to the court that is confronted with a proceeding to modify a custody determination of another State. It prohibits a court from modifying a custody determination made consistently with this Act by a court in another State unless a court of that State determines that it no longer has exclusive, continuing jurisdiction under Section 202 or that this State would be a more convenient forum under Section 207. The modification State is not authorized to determine that the original decree State has lost its jurisdiction. The only exception is when the child, the child’s parents, and any person acting as a parent do not presently reside in the other State. In other words, a court of the modification State can determine that all parties have moved away from the original State. The court of the modification State must have jurisdiction under the standards of Section 201.

Legal Periodicals.

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Editor’s Note. —

Many of the cases cited below were decided under former G.S. 50A-14.

Georgia’s version of the Uniform Child Custody Jurisdiction Act (UCCJA) conforms to North Carolina’s version. Pheasant v. McKibben, 100 N.C. App. 379, 396 S.E.2d 333, 1990 N.C. App. LEXIS 985 (1990).

Physical Presence of Child Coupled with Emergency. —

To meet the requirements of former G.S. 50A-14(a) and former G.S. 50A-3(a)(3)(ii), the following three questions must be answered affirmatively: (1) Did the foreign court lack jurisdiction under jurisdictional prerequisites similar to those of the Uniform Child Custody Jurisdiction Act or has the foreign court declined to exercise jurisdiction to modify the decree? (2) Was the child physically present in North Carolina? (3) Did an emergency situation exist? Naputi v. Naputi, 67 N.C. App. 351, 313 S.E.2d 179, 1984 N.C. App. LEXIS 3044 (1984).

Proper Exercise of Jurisdiction. —

Trial court had jurisdiction, as the New York order was sufficient to relinquish jurisdiction to North Carolina and North Carolina had been the child’s home state for almost three years. In re N.B., 240 N.C. App. 353, 771 S.E.2d 562, 2015 N.C. App. LEXIS 275 (2015).

Tennessee exercised jurisdiction in accord with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) because a mother participated in the hearing in Tennessee, she lived in Virginia, and none of the parties remained in North Carolina; North Carolina did not need to “release” its jurisdiction as Tennessee properly exercised its jurisdiction to modify visitation under its UCCJEA, which was the same as the North Carolina UCCJEA. In re C.M.B., 826 S.E.2d 810, 2019 N.C. App. LEXIS 307 (Ct. App. 2019).

Trial court erred in concluding that it had subject matter jurisdiction over the action and that Tennessee also had appropriate subject matter jurisdiction over the action because North Carolina no longer had subject matter jurisdiction; Tennessee had authority to exercise jurisdiction to modify visitation because none of the parties resided in North Carolina. In re C.M.B., 826 S.E.2d 810, 2019 N.C. App. LEXIS 307 (Ct. App. 2019).

Father failed to show that the trial court lacked subject matter jurisdiction to modify a Delaware court custody order under the UCCJEA where it was undisputed that the child’s mother, the father, and the child no longer resided in Delaware when the county department of social services (DSS) filed the juvenile petition, and initial information that the child did not reside in North Carolina was superseded by more accurate information that the child had resided in the state for more than six months before DSS filed the juvenile petition. Thus, North Carolina was the child’s home state. In re L.T., 374 N.C. 567, 843 S.E.2d 199, 2020 N.C. LEXIS 508 (2020).

Trial court was not exercising modification jurisdiction because it was not considering modifying a child-custody determination made by a court of another state; after the father’s commencement of the custody action, North Carolina retained its “initial determination” jurisdiction, and because North Carolina was the “home state” of the child for more than six months before the father filed the custody action, North Carolina had jurisdiction to enter the permanent custody order. Waly v. Alkamary, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

Trial court was not exercising modification jurisdiction because it was not considering modifying a child-custody determination made by a court of another state; after the father’s commencement of the custody action, North Carolina retained its “initial determination” jurisdiction, and because North Carolina was the “home state” of the child for more than six months before the father filed the custody action, North Carolina had jurisdiction to enter the permanent custody order. Waly v. Alkamary, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

Trial court had jurisdiction to modify an out-of-state child custody order because North Carolina was the home state as the father and the children lived in North Carolina for at least six months before the custody proceedings; the New York child custody order specifically stated it was relinquishing jurisdiction; and the mother acquiesced to the trial court’s jurisdiction. Malone-Pass v. Schultz, 868 S.E.2d 327, 2021- NCCOA-656, 2021 N.C. App. LEXIS 680 (Ct. App. 2021).

Proper Exercise of Jurisdiction and Modification of Custody Decree. —

Mother and children had significant connection to North Carolina and there was substantial evidence in North Carolina. Therefore, North Carolina court correctly determined that North Carolina, not Georgia, was home state. Court did not err in assuming jurisdiction and modifying Georgia custody decree, even though children resided in Georgia and there was no evidence that Georgia had declined jurisdiction. Pheasant v. McKibben, 100 N.C. App. 379, 396 S.E.2d 333, 1990 N.C. App. LEXIS 985 (1990).

Trial court properly found that it had jurisdiction to enter custody and termination orders under circumstances in which, at the time of the petition, the older child was in the custody of the department in North Carolina and had been for 18 months, the mother had earlier moved to North Carolina with the older child, at the date of the petition the mother was incarcerated in North Carolina, and the younger child had no contact with any other state; because the trial court asserted its jurisdiction in the order and the evidence supported its determination, the trial court properly exercised jurisdiction. In re T.J.D.W., 182 N.C. App. 394, 642 S.E.2d 471, 2007 N.C. App. LEXIS 672, aff'd, 362 N.C. 84, 653 S.E.2d 143, 2007 N.C. LEXIS 1225 (2007).

North Carolina court properly asserted jurisdiction and entered an order granting the mother custody of the child after the Illinois court relinquished jurisdiction. Williams v. Walker, 185 N.C. App. 393, 648 S.E.2d 536, 2007 N.C. App. LEXIS 1826 (2007).

Trial court had subject-matter jurisdiction under G.S. 50A-203(2) to modify a Michigan custody order because North Carolina was the children’s “home state” at the time the custody action was initiated, G.S. 50A-102(7), and neither the children nor the mother or father continued to reside in Michigan. Crenshaw v. Williams, 211 N.C. App. 136, 710 S.E.2d 227, 2011 N.C. App. LEXIS 722 (2011).

Trial court did not have jurisdiction, under G.S. 50A-203, to modify a Texas custody order because, while the court had jurisdiction to enter an initial custody order, (1) the Texas court did not find that court no longer has exclusive, continuing jurisdiction or that a North Carolina court was a more convenient forum, and (2) the trial court found the child’s mother resided in Texas. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228, 2015 N.C. App. LEXIS 989 (2015).

North Carolina court had jurisdiction to modify an Illinois custody order because (1) the North Carolina court had jurisdiction to enter an initial custody order due to an Illinois judge’s transfer of the case to North Carolina since the mother had not lived in Illinois for a number of years and the child’s alleged abuse occurred in North Carolina, tantamount to finding North Carolina was the more appropriate forum, (2) the record showed the mother and child had a significant connection with North Carolina other than mere physical presence, and (3) substantial evidence was available in North Carolina as the child’s alleged sexual assault and other acts of neglect by the mother occurred in North Carolina, and the Illinois court found North Carolina was a more convenient forum. In re T.R., 250 N.C. App. 386, 792 S.E.2d 197, 2016 N.C. App. LEXIS 1161 (2016).

Jurisdiction of Trial Court Proper. —

North Carolina was the home state of the child and thus the trial court had jurisdiction to make an initial determination, plus none of the relevant persons were residents of Florida at any time relevant to the jurisdictional analysis; thus, the conditions for modification jurisdiction were met, and the trial court had jurisdiction to consider plaintiff’s action to modify the Florida order and to enter the various visitation and other orders entered in relation to the issue of the child’s custody. Quevedo-Woolf v. Overholser, 261 N.C. App. 387, 820 S.E.2d 817, 2018 N.C. App. LEXIS 946 (2018).

Modification Decree. —

Trial court had subject-matter jurisdiction under G.S. 50A-203(2) to modify a Michigan custody order because North Carolina was the children’s “home state” at the time the custody action was initiated, G.S. 50A-102(7), and neither the children nor the mother or father continued to reside in Michigan. Crenshaw v. Williams, 211 N.C. App. 136, 710 S.E.2d 227, 2011 N.C. App. LEXIS 722 (2011).

Subject Matter Jurisdiction In Termination of Parental Rights Proceeding. —

Trial court had subject matter jurisdiction to terminate a father’s parental rights because North Carolina was the child’s home State since she lived there with the mother, and Virginia no longer possessed exclusive, continuing subject matter jurisdiction; neither the father, the mother, nor the child actually resided in Virginia at the time of the filing of the motion to terminate the father’s parental rights. In re B.L.H., 239 N.C. App. 52, 767 S.E.2d 905, 2015 N.C. App. LEXIS 20 (2015).

Trial court properly exercised subject-matter jurisdiction regarding a father’s parental rights on a temporary emergency basis because his children lived in North Carolina for more than a year prior to the hearing on pre-adjudication, adjudication, and disposition, and thus, North Carolina qualified as their “home state”; once a Michigan court determined North Carolina would be a more convenient forum and relinquished jurisdiction over the children, the trial court could assert jurisdiction. In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598, 2017 N.C. App. LEXIS 545 (2017).

Statute did not apply. —

No other state has ever entered a custody order as to the child and thus the statute did not apply in this case. In re N.T.U., 234 N.C. App. 722, 760 S.E.2d 49, 2014 N.C. App. LEXIS 685 (2014).

Trial Court Erred in Exercising Jurisdiction. —

The trial court in this State erred in exercising its jurisdiction over a custody matter where a proceeding was already pending in an Indiana court and the child had lived in Indiana since 1981, a period of six years. Indiana was exercising jurisdiction in substantial conformity with the Uniform Child Custody Jurisdiction Act (U.C.C.J.A.), and North Carolina was required to decline jurisdiction over the custody issue. Lynch v. Lynch, 96 N.C. App. 601, 386 S.E.2d 607, 1989 N.C. App. LEXIS 1111 (1989).

North Carolina court did not have subject matter jurisdiction over the proceedings to terminate a mother’s parental rights, although North Carolina was the home state of the children, because there was nothing in the record showing that the Arkansas court, which had awarded custody to the father, had determined that a North Carolina court would be a more convenient forum under G.S. 50A-207. In re N.R.M., 165 N.C. App. 294, 598 S.E.2d 147, 2004 N.C. App. LEXIS 1163 (2004).

Because a juvenile’s mother continued to live in New York, where an original order of custody was made, G.S. 50A-203(2) was not satisfied even though the father and the juvenile had left New York and moved to North Carolina. In re J.W.S., 194 N.C. App. 439, 669 S.E.2d 850, 2008 N.C. App. LEXIS 2268 (2008).

North Carolina trial court lacked subject matter jurisdiction over a termination of parental rights proceeding because a prior custody order was entered in a court in New Jersey. Although the trial court concluded that it had jurisdiction over the parties and the subject matter, the trial court made no findings of fact which would support this conclusion of law. In re J.A.P., 218 N.C. App. 190, 721 S.E.2d 253, 2012 N.C. App. LEXIS 65 (2012).

Trial court lacked jurisdiction to enter an order adjudicating a mother’s son neglected and dependent and placing him in the custody of a department because there was no finding of fact, order, or other indication that the New York court involved in prior protective services had opted not to exercise jurisdiction; there was no finding or conclusion concerning status of the New York court’s jurisdiction or finding that the North Carolina court met the requirements of G.S. 50A-201(a)(1) or G.S. 50A-201(a)(2) such that it could make a modification under G.S. 50A-203. In re E.J., 225 N.C. App. 333, 738 S.E.2d 204, 2013 N.C. App. LEXIS 128 (2013).

Trial court erred when the court concluded that an Indiana court relinquished jurisdiction to North Carolina’s courts; the first prong of G.S. 50A-203 was the only possible basis for the existence of jurisdiction in North Carolina. In re J.D., 234 N.C. App. 342, 759 S.E.2d 375, 2014 N.C. App. LEXIS 614 (2014).

District court erred in terminating a father’s parental rights because it never acquired subject matter jurisdiction sine there was no order from the New Jersey court relieving itself of jurisdiction; because the father continued to reside in New Jersey, the district court did not gain jurisdiction over the case through the statute, and the termination order did not list a specific statute as the basis to issue its order. In re T.E.N., 252 N.C. App. 461, 798 S.E.2d 792, 2017 N.C. App. LEXIS 218 (2017).

District court erred in terminating a mother’s parental rights because it lacked subject matter jurisdiction to modify a California court’s child-custody determination inasmuch as the California court did not determine that it no longer had exclusive, continuing jurisdiction, neither court made a finding that the mother did not presently reside in California, and the California court had not terminated its jurisdiction. In re D.A.Y., 266 N.C. App. 33, 831 S.E.2d 854, 2019 N.C. App. LEXIS 527 (2019).

OFFICIAL COMMENT

The provisions of this section are an elaboration of what was formerly Section 3(a)(3) of the UCCJA [former G.S. 50A-3(a)(3).] It remains, as Professor Bodenheimer’s comments to that section noted, “an extraordinary jurisdiction reserved for extraordinary circumstances.”

This section codifies and clarifies several aspects of what has become common practice in emergency jurisdiction cases under the UCCJA and PKPA. First, a court may take jurisdiction to protect the child even though it can claim neither home State nor significant connection jurisdiction. Second, the duties of States to recognize, enforce and not modify a custody determination of another State do not take precedence over the need to enter a temporary emergency order to protect the child.

Third, a custody determination made under the emergency jurisdiction provisions of this section is a temporary order. The purpose of the order is to protect the child until the State that has jurisdiction under Sections 201-203 enters an order.

Under certain circumstances, however, subsection (b) provides that an emergency custody determination may become a final custody determination. If there is no existing custody determination, and no custody proceeding is filed in a State with jurisdiction under Sections 201-203, an emergency custody determination made under this section becomes a final determination, if it so provides, when the State that issues the order becomes the home State of the child.

Subsection (c) is concerned with the temporary nature of the order when there exists a prior custody order that is entitled to be enforced under this Act or when a subsequent custody proceeding is filed in a State with jurisdiction under Sections 201-203. Subsection (c) allows the temporary order to remain in effect only so long as is necessary for the person who obtained the determination under this section to present a case and obtain an order from the State with jurisdiction under Sections 201-203. That time period must be specified in the order. If there is an existing order by a State with jurisdiction under Sections 201-203, that order need not be reconfirmed. The temporary emergency determination would lapse by its own terms at the end of the specified period or when an order is obtained from the court with jurisdiction under Sections 202-203. The court with appropriate jurisdiction also may decide, under the provisions of 207, that the court that entered the emergency order is in a better position to address the safety of the person who obtained the emergency order, or the child, and decline jurisdiction under Section 207.

Any hearing in the State with jurisdiction under Sections 201-203 on the temporary emergency determination is subject to the provisions of Sections 111 and 112. These sections facilitate the presentation of testimony and evidence taken out of State. If there is a concern that the person obtaining the temporary emergency determination under this section would be in danger upon returning to the State with jurisdiction under Sections 201-203, these provisions should be used.

Subsection (d) requires communication between the court of the State that is exercising jurisdiction under this section and the court of another State that is exercising jurisdiction under Sections 201-203. The pleading rules of Section 209 apply fully to determinations made under this section. Therefore, a person seeking a temporary emergency custody determination is required to inform the court pursuant to Section 209(d) of any proceeding concerning the child that has been commenced elsewhere. The person commencing the custody proceeding under Sections 201-203 is required under Section 209(a) to inform the court about the temporary emergency proceeding. These pleading requirements are to be strictly followed so that the courts are able to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

OFFICIAL COMMENT

Relationship to the PKPA. The definition of emergency has been modified to harmonize it with the PKPA. The PKPA’s definition of emergency jurisdiction does not use the term “neglect.” It defines an emergency as “mistreatment or abuse.” Therefore “neglect” has been eliminated as a basis for the assumption of temporary emergency jurisdiction. Neglect is so elastic a concept that it could justify taking emergency jurisdiction in a wide variety of cases. Under the PKPA, if a State exercised temporary emergency jurisdiction based on a finding that the child was neglected without a finding of mistreatment or abuse, the order would not be entitled to federal enforcement in other States.

OFFICIAL COMMENT

Relationship to Protective Order Proceedings. The UCCJA and the PKPA were enacted long before the advent of state procedures on the use of protective orders to alleviate problems of domestic violence. Issues of custody and visitation often arise within the context of protective order proceedings since the protective order is often invoked to keep one parent away from the other parent and the children when there is a threat of violence. This Act recognizes that a protective order proceeding will often be the procedural vehicle for invoking jurisdiction by authorizing a court to assume temporary emergency jurisdiction when the child’s parent or sibling has been subjected to or threatened with mistreatment or abuse.

In order for a protective order that contains a custody determination to be enforceable in another State it must comply with the provisions of this Act and the PKPA. Although the Violence Against Women’s Act (VAWA), 18 U.S.C. § 2265, does provide an independent basis for the granting of full faith and credit to protective orders, it expressly excludes “custody” orders from the definition of “protective order,” 22 U.S.C. § 2266.

Many States authorize the issuance of protective orders in an emergency without notice and hearing. This Act does not address the propriety of that procedure. It is left to local law to determine the circumstances under which such an order could be issued, and the type of notice that is required, in a case without an interstate element. However, an order issued after the assumption of temporary emergency jurisdiction is entitled to interstate enforcement and nonmodification under this Act and the PKPA only if there has been notice and a reasonable opportunity to be heard as set out in Section 205. Although VAWA does require that full faith and credit be accorded to ex parte protective orders if notice will be given and there will be a reasonable opportunity to be heard, it does not include a “custody” order within the definition of “protective order.”

VAWA does play an important role in determining whether an emergency exists. That Act requires a court to give full faith and credit to a protective order issued in another State if the order is made in accordance with the VAWA. This would include those findings of fact contained in the order. When a court is deciding whether an emergency exists under this section, it may not relitigate the existence of those factual findings.

CASE NOTES

Applicability. —

This section was not applicable to a petition to terminate a mother’s parental rights because the children had not been abandoned within the meaning of the North Carolina Uniform Child-Custody Jurisdiction and Enforcement Act and there was no indication that the children were in need of protection. In re N.R.M., 165 N.C. App. 294, 598 S.E.2d 147, 2004 N.C. App. LEXIS 1163 (2004).

Trial court’s adjudication and disposition, custody review, and permanency planning orders were vacated because (1) another state had entered a custody order as to the child, and (2) the trial court did not exercise temporary emergency jurisdiction in entering these orders, as none of the orders stated an adequate time within which to obtain an order from the court that entered the initial custody order, the court did not immediately communicate with that court, and the court did not purport to exercise emergency jurisdiction, as the court merely found the court had jurisdiction. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228, 2015 N.C. App. LEXIS 989 (2015).

Agency Had Standing Since No Other Court Had Exercised Jurisdiction. —

County department of social services had standing to file a termination petition under G.S. 7B-1103(a)(3) since the record established that emergency jurisdiction under G.S. 50A-204 existed at the time the department filed its juvenile petition, as a result, the department had been awarded custody by a court of competent jurisdiction, and those orders remained in effect pursuant to G.S. 50A-204(b) because no other orders had been entered by another state with jurisdiction. In re E.X.J., 191 N.C. App. 34, 662 S.E.2d 24, 2008 N.C. App. LEXIS 1172 (2008), aff'd, 363 N.C. 9, 672 S.E.2d 19, 2009 N.C. LEXIS 110 (2009).

Review. —

Trial court properly entered a temporary custody order placing a child in the custody of a county’s department of social services pursuant to its temporary emergency jurisdiction under G.S. 50A-204 where the child’s father had been incarcerated and the child’s mother had threatened to kill the child and throw the child out. In re M.B., 179 N.C. App. 572, 635 S.E.2d 8, 2006 N.C. App. LEXIS 1960 (2006).

Court Lacked Jurisdiction to Enter Adjudication Order. —

Although the trial court did have temporary jurisdiction under G.S. 50A-204(a), to enter the nonsecure custody orders, the trial court did not have jurisdiction, exclusive or temporary, to enter the juvenile adjudication order, because there was no record evidence that the trial court ever communicated with the New York court, which had entered an original custody order as to the juvenile, as mandated by G.S. 50A-204(d) and G.S. 50A-110, to determine if the New York court opted not to exercise jurisdiction. In re J.W.S., 194 N.C. App. 439, 669 S.E.2d 850, 2008 N.C. App. LEXIS 2268 (2008).

Trial court lacked jurisdiction to enter an order adjudicating a mother’s son neglected and dependent and placing him in the custody of a department because there was no finding of fact, order, or other indication that the New York court involved in prior protective services had opted not to exercise jurisdiction; there was no finding or conclusion concerning status of the New York court’s jurisdiction or finding that the North Carolina court met the requirements of G.S. 50A-201(a)(1) or G.S. 50A-201(a)(2) such that it could make a modification under G.S. 50A-203. The adjudication and disposition order was also insufficient to invoke temporary emergency jurisdiction under G.S. 50A-204 as the trial court could only have entered an order under its temporary emergency jurisdiction for a specific period of time. In re E.J., 225 N.C. App. 333, 738 S.E.2d 204, 2013 N.C. App. LEXIS 128 (2013).

Specific findings not required. —

Mother argued that the trial court acted without proper temporary emergency jurisdiction because it failed to make findings that the child was abandoned or that it was necessary to exercise jurisdiction to protect the child, but the statutory bases for jurisdiction did not require a trial court to make specific findings of fact regarding jurisdiction and the statute states only that certain circumstances must exist, not that the court must specifically make findings to that effect. In re N.T.U., 234 N.C. App. 722, 760 S.E.2d 49, 2014 N.C. App. LEXIS 685 (2014).

Emergency jurisdiction proper. —

Trial court properly entered the initial nonsecure custody orders pursuant to the court’s temporary emergency jurisdiction and properly found the child to be abandoned; the child’s mother had been arrested and incarcerated, the child was left without supervision or provision for the child’s care, and the trial court found that the department needed to assume custody since the mother would be unable to care for the child and the mother’s recommended placement had pending criminal charges, including sexual offenses against a child. In re N.T.U., 234 N.C. App. 722, 760 S.E.2d 49, 2014 N.C. App. LEXIS 685 (2014).

Trial court had temporary emergency jurisdiction to enter a child custody order because the court found the child was exposed to a substantial risk of physical injury or sexual abuse as the parent, guardian, custodian, or caretaker had created conditions likely to cause injury or abuse or had failed to provide, or was unable to provide, adequate supervision or protection. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228, 2015 N.C. App. LEXIS 989 (2015).

Trial court properly exercised subject-matter jurisdiction regarding a father’s parental rights on a temporary emergency basis because his children lived in North Carolina for more than a year prior to the hearing on pre-adjudication, adjudication, and disposition, and thus, North Carolina qualified as their “home state”; once a Michigan court determined North Carolina would be a more convenient forum and relinquished jurisdiction over the children, the trial court could assert jurisdiction. In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598, 2017 N.C. App. LEXIS 545 (2017).

Procedures Followed. —

Trial court followed the procedures in communicating with the court in Tennessee based upon allegations of potential harm to a child, and because both judges agreed the case could proceed in Tennessee, the trial court properly “stayed” the mother’s motions and purported to “transfer” the case to Tennessee; there was no indication that the child was present the State for the trial court to exercise temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. In re C.M.B., 826 S.E.2d 810, 2019 N.C. App. LEXIS 307 (Ct. App. 2019).

OFFICIAL COMMENT

This section generally continues the notice provisions of the UCCJA. However, it does not attempt to dictate who is entitled to notice. Local rules vary with regard to persons entitled to seek custody of a child. Therefore, this section simply indicates that persons entitled to seek custody should receive notice but leaves the rest of the determination to local law. Parents whose parental rights have not been previously terminated and persons having physical custody of the child are specifically mentioned as persons who must be given notice. The PKPA, § 1738A(e), requires that they be given notice in order for the custody determination to be entitled to full faith and credit under that Act.

State laws also vary with regard to whether a court has the power to issue an enforceable temporary custody order without notice and hearing in a case without any interstate element. Such temporary orders may be enforceable, as against due process objections, for a short period of time if issued as a protective order or a temporary restraining order to protect a child from harm. Whether such orders are enforceable locally is beyond the scope of this Act. Subsection (b) clearly provides that the validity of such orders and the enforceability of such orders is governed by the law which authorizes them and not by this Act. An order is entitled to interstate enforcement and nonmodification under this Act only if there has been notice and an opportunity to be heard. The PKPA, § 1738A(e), also requires that a custody determination is entitled to full faith and credit only if there has been notice and an opportunity to be heard.

Rules requiring joinder of people with an interest in the custody of and visitation with a child also vary widely throughout the country. The UCCJA has a separate section on joinder of parties which has been eliminated. The issue of who is entitled to intervene and who must be joined in a custody proceeding is to be determined by local state law.

A sentence of the UCCJA § 4 which indicated that persons outside the State were to be given notice and an opportunity to be heard in accordance with the provision of that Act has been eliminated as redundant.

CASE NOTES

Jurisdiction. —

Because a summons was not issued to or served on the father, the trial court did not have authority to enter an order adjudicating his child to be a dependent juvenile and granting permanent legal and physical custody to relatives. In re Poole, 151 N.C. App. 472, 568 S.E.2d 200, 2002 N.C. App. LEXIS 775 (2002), rev'd, 357 N.C. 151, 579 S.E.2d 248, 2003 N.C. LEXIS 429 (2003).

Adequacy of Notice. —

Trial court’s judgment to modify a child custody award and award sole custody of the minor children to the mother was affirmed because the father admitted that he was on actual notice that a motion to modify custody was set to be heard, but was continued to some date in the future in order to accommodate his need to find new counsel. In addition, he had actual notice of the scheduled court date for the hearing days prior to leaving for a planned vacation, but chose to proceed with the trip rather than attend the hearing; therefore, he had adequate notice of the hearing and an opportunity to be heard. Trivette v. Trivette, 162 N.C. App. 55, 590 S.E.2d 298, 2004 N.C. App. LEXIS 40 (2004).

Notice Held Sufficient. —

Mother had received adequate notice that the hearing would include changes to the visitation schedule since the father had moved the court for an order finding and holder the mother in contempt for her disobedience and failure to comply with the provision of prior orders entered in the case. Anderson v. Lackey, 163 N.C. App. 246, 593 S.E.2d 87, 2004 N.C. App. LEXIS 381 (2004).

Father’s argument that he did not receive notice was rejected where although the county department of social services did not ultimately file a motion in the initial adjudication proceeding to terminate his rights, it had filed a separate petition to terminate those rights and properly served him with a summons, and the petition. In re E.X.J., 191 N.C. App. 34, 662 S.E.2d 24, 2008 N.C. App. LEXIS 1172 (2008), aff'd, 363 N.C. 9, 672 S.E.2d 19, 2009 N.C. LEXIS 110 (2009).

In a child custody case in which a mother appealed an order modifying custody, she unsuccessfully argued that the hearing supporting the order was held without proper notice to her. The record showed that the father’s counsel mailed the father’s motion for modification and notice of hearing for the October 25, 2007 hearing on September 28, 2007, and the mother’s numerous responses to the motion to modify custody indicated that she was well aware that the custody matter was scheduled for hearing on October 25, 2007. Mitchell v. Mitchell, 199 N.C. App. 392, 681 S.E.2d 520, 2009 N.C. App. LEXIS 1484 (2009).

OFFICIAL COMMENT

This section represents the remnants of the simultaneous proceedings provision of the UCCJA § 6 [former G.S. 50A-6.] The problem of simultaneous proceedings is no longer a significant issue. Most of the problems have been resolved by the prioritization of home state jurisdiction under Section 201; the exclusive, continuing jurisdiction provisions of Section 202; and the prohibitions on modification of Section 203. If there is a home State, there can be no exercise of significant connection jurisdiction in an initial child custody determination and, therefore, no simultaneous proceedings. If there is a State of exclusive, continuing jurisdiction, there cannot be another State with concurrent jurisdiction and, therefore, no simultaneous proceedings. Of course, the home State, as well as the State with exclusive, continuing jurisdiction, could defer to another State under Section 207. However, that decision is left entirely to the home State or the State with exclusive, continuing jurisdiction.

Under this Act, the simultaneous proceedings problem will arise only when there is no home State, no State with exclusive, continuing jurisdiction and more than one significant connection State. For those cases, this section retains the “first in time” rule of the UCCJA. Subsection (b) retains the UCCJA’s policy favoring judicial communication. Communication between courts is required when it is determined that a proceeding has been commenced in another State.

Subsection (c) concerns the problem of simultaneous proceedings in the State with modification jurisdiction and enforcement proceedings under Article 3. This section authorizes the court with exclusive, continuing jurisdiction to stay the modification proceeding pending the outcome of the enforcement proceeding, to enjoin the parties from continuing with the enforcement proceeding, or to continue the modification proceeding under such conditions as it determines are appropriate. The court may wish to communicate with the enforcement court. However, communication is not mandatory. Although the enforcement State is required by the PKPA to enforce according to its terms a custody determination made consistently with the PKPA, that duty is subject to the decree being modified by a State with the power to do so under the PKPA. An order to enjoin the parties from enforcing the decree is the equivalent of a temporary modification by a State with the authority to do so. The concomitant provision addressed to the enforcement court is Section 306 of this Act. That section requires the enforcement court to communicate with the modification court in order to determine what action the modification court wishes the enforcement court to take.

The term “pending” that was utilized in the UCCJA section on simultaneous proceeding has been replaced. It has caused considerable confusion in the case law. It has been replaced with the term “commencement of the proceeding” as more accurately reflecting the policy behind this section. The latter term is defined in Section 102(5).

Legal Periodicals.

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 50A-6 and G.S. 50A-14.

Duty to Contact State With Original Jurisdiction. —

In a proceeding by the Department of Social Services seeking protective custody of a child based on evidence of sexual abuse by the father, the trial court was required to contact the appropriate Florida court to determine if that state was willing to assume jurisdiction of the case. In re Malone, 129 N.C. App. 338, 498 S.E.2d 836, 1998 N.C. App. LEXIS 516 (1998).

What Law Governs. —

The issue of a state court’s jurisdiction over child custody matters is governed by this Chapter, the former Uniform Child Custody Jurisdiction Act (see now Article 2 of this chapter), and the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A. Schrock v. Schrock, 89 N.C. App. 308, 365 S.E.2d 657, 1988 N.C. App. LEXIS 296 (1988); In re Bean, 132 N.C. App. 363, 511 S.E.2d 683, 1999 N.C. App. LEXIS 112 (1999).

When there is an action already pending in another state, trial court must answer threshold question of whether the other state was exercising jurisdiction substantially in conformity with this Chapter. Davis v. Davis, 53 N.C. App. 531, 281 S.E.2d 411, 1981 N.C. App. LEXIS 2703 (1981).

Full Faith and Credit Properly Refused. —

Refusal of North Carolina court to give full faith and credit to a Michigan custody award was not improper, where Michigan’s exercise of jurisdiction was not consistent with the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, and the former Uniform Child Custody Jurisdiction Act. Schrock v. Schrock, 89 N.C. App. 308, 365 S.E.2d 657, 1988 N.C. App. LEXIS 296 (1988).

Jurisdiction of Foreign Court Not Obtained in Conformity with Chapter. —

California court did not obtain jurisdiction over child custody proceeding substantially in conformity with this Chapter where North Carolina rather than California was the home state of the children; there was no evidence that the children had a “significant connection” with California or that “substantial evidence” was available in California concerning the children’s care; and there was significant evidence that defendant had on several occasions taken the children from North Carolina to California without plaintiff’s consent. Davis v. Davis, 53 N.C. App. 531, 281 S.E.2d 411, 1981 N.C. App. LEXIS 2703 (1981).

Refusal to Assert Jurisdiction Held Proper. —

For case holding trial court properly declined to assert jurisdiction based upon conclusion that another state had assumed jurisdiction as the home state of the children involved in the custody matter in question, see Bhatti v. Bhatti, 98 N.C. App. 493, 391 S.E.2d 201, 1990 N.C. App. LEXIS 423 (1990).

Although the child resided in North Carolina, the court properly declined jurisdiction because the father continued to reside in the state of the court of original jurisdiction; thus, the Florida court retained jurisdiction under the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A. In re Bean, 132 N.C. App. 363, 511 S.E.2d 683, 1999 N.C. App. LEXIS 112 (1999).

Where the requisite findings of fact and conclusions of law were made that New Jersey had proper home state jurisdiction at the time the New Jersey child custody action was commenced, the New Jersey court had communicated with the North Carolina court regarding the jurisdictional issue, and New Jersey declined to find North Carolina the more appropriate forum for the parties’ custody dispute, dismissal of the North Carolina action was proper under the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction and Enforcement Act. Jones v. Whimper, 218 N.C. App. 533, 727 S.E.2d 700, 2012 N.C. App. LEXIS 217 (2012), aff'd in part, vacated in part, 366 N.C. 367, 736 S.E.2d 170, 2013 N.C. LEXIS 51 (2013).

Trial Court Erred in Exercising Jurisdiction. —

The trial court in this State erred in exercising its jurisdiction over a custody matter where a proceeding was already pending in an Indiana court and the child had lived in Indiana since 1981, a period of six years. Indiana was exercising jurisdiction in substantial conformity with the former Uniform Child Custody Jurisdiction Act (U.C.C.J.A.), and North Carolina was required to decline jurisdiction over the custody issue. Lynch v. Lynch, 96 N.C. App. 601, 386 S.E.2d 607, 1989 N.C. App. LEXIS 1111 (1989).

Exercise of Jurisdiction Upheld. —

Trial court did not err in exercising jurisdiction in a child custody proceeding on the ground that an identical action was pending in Virginia where judgment was entered by the Virginia court three weeks before the mother commenced an action in this State, and the mother, who was the losing party in the Virginia proceeding, showed that she had no interest in appealing the Virginia judgment when she filed her action in this State. Williams v. Richardson, 53 N.C. App. 663, 281 S.E.2d 777, 1981 N.C. App. LEXIS 2722 (1981).

District court was not precluded from exercising subject matter jurisdiction over custody and support action by former 50A-14(a) of this section, where there was no proceeding concerning the custody of the minor children pending in a court of another state when plaintiff filed her complaint. Brookshire v. Brookshire, 89 N.C. App. 48, 365 S.E.2d 307, 1988 N.C. App. LEXIS 229 (1988).

OFFICIAL COMMENT

This section retains the focus of Section 7 of the UCCJA [former G.S. 50A-7.] It authorizes courts to decide that another State is in a better position to make the custody determination, taking into consideration the relative circumstances of the parties. If so, the court may defer to the other State.

The list of factors that the court may consider has been updated from the UCCJA. The list is not meant to be exclusive. Several provisions require comment. Subparagraph (1) is concerned specifically with domestic violence and other matters affecting the health and safety of the parties. For this purpose, the court should determine whether the parties are located in different States because one party is a victim of domestic violence or child abuse. If domestic violence or child abuse has occurred, this factor authorizes the court to consider which State can best protect the victim from further violence or abuse.

In applying subparagraph (3), courts should realize that distance concerns can be alleviated by applying the communication and cooperation provisions of Sections 111 and 112.

In applying subsection (7) on expeditious resolution of the controversy, the court could consider the different procedural and evidentiary laws of the two States, as well as the flexibility of the court dockets. It also should consider the ability of a court to arrive at a solution to all the legal issues surrounding the family. If one State has jurisdiction to decide both the custody and support issues, it would be desirable to determine that State to be the most convenient forum. The same is true when children of the same family live in different States. It would be inappropriate to require parents to have custody proceedings in several States when one State could resolve the custody of all the children.

Before determining whether to decline or retain jurisdiction, the court of this State may communicate, in accordance with Section 110, with a court of another State and exchange information pertinent to the assumption of jurisdiction by either court.

There are two departures from Section 7 of the UCCJA [former G.S. 50A-7.] First, the court may not simply dismiss the action. To do so would leave the case in limbo. Rather the court shall stay the case and direct the parties to file in the State that has been found to be the more convenient forum. The court is also authorized to impose any other conditions it considers appropriate. This might include the issuance of temporary custody orders during the time necessary to commence a proceeding in the designated State, dismissing the case if the custody proceeding is not commenced in the other State or resuming jurisdiction if a court of the other State refuses to take the case.

Second, UCCJA, § 7(g) [former G.S. 50A-7(g)] which allowed the court to assess fees and costs if it was a clearly inappropriate court, has been eliminated. If a court has jurisdiction under this Act, it could not be a clearly inappropriate court.

Legal Periodicals.

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Editor’s Note. —

Many of the cases cited below were decided under former G.S. 50A-7.

Without a showing that the best interests of the child would be served if another state assumed jurisdiction, North Carolina courts should not defer jurisdiction pursuant to this section. Kelly v. Kelly, 77 N.C. App. 632, 335 S.E.2d 780, 1985 N.C. App. LEXIS 4191 (1985).

Discretion of Trial Court. —

Deferring jurisdiction on inconvenient forum grounds rests in the sound discretion of the trial court. Kelly v. Kelly, 77 N.C. App. 632, 335 S.E.2d 780, 1985 N.C. App. LEXIS 4191 (1985).

Litigation In North Carolina Did Not Establish Significant Connection Jurisdiction. —

It was error for a North Carolina trial court to exercise custody modification jurisdiction because, inter alia, North Carolina had no significant connection jurisdiction under G.S. 50A-201(a)(2) as litigation in North Carolina did not establish such jurisdiction. Gerhauser v. Van Bourgondien, 238 N.C. App. 275, 767 S.E.2d 378, 2014 N.C. App. LEXIS 1395 (2014).

No Order Stating North Carolina Would Be A More Convenient Forum. —

North Carolina court did not have subject matter jurisdiction over the proceedings to terminate a mother’s parental rights under G.S. 50A-203, although North Carolina was the home state of the children, because there was nothing in the record showing that the Arkansas court, which had awarded custody to the father, had determined that a North Carolina court would be a more convenient forum. In re N.R.M., 165 N.C. App. 294, 598 S.E.2d 147, 2004 N.C. App. LEXIS 1163 (2004).

North Carolina did not have jurisdiction to rule on a petition alleging the a juvenile was abused, neglected, and dependent because an original custody order was made by a New York court, awarding custody to the mother, and there was no order from the New York court in the record showing that New York made a determination that North Carolina, where the father had taken the juvenile, was a more convenient forum. In re J.W.S., 194 N.C. App. 439, 669 S.E.2d 850, 2008 N.C. App. LEXIS 2268 (2008).

Trial court did not have jurisdiction, under G.S. 50A-203, to modify a Texas custody order because, while the court had jurisdiction to enter an initial custody order, (1) the Texas court did not find that court no longer has exclusive, continuing jurisdiction or that a North Carolina court was a more convenient forum, and (2) the trial court found the child’s mother resided in Texas. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228, 2015 N.C. App. LEXIS 989 (2015).

North Carolina Properly Found to Be An Inconvenient Forum. —

Trial court properly determined that North Carolina was an inconvenient forum pursuant to G.S. 50A-207 for a mother’s child custody motion and transferred the matter to Ohio, as the evidence supported the court’s finding that the child had adjusted to her placement with her father in Ohio, and that the majority of the evidence was located in Ohio, and the matter was still pending before the court, because an underlying dependency action vested the trial court with continuing subject matter jurisdiction until the child was 18 years of age. In re M.E., 181 N.C. App. 322, 638 S.E.2d 513, 2007 N.C. App. LEXIS 51 (2007).

Forum Appropriate. —

Where the trial court made 15 detailed findings of fact including findings that support was paid by the defendant in North Carolina, three of the four parties live in Wilmington, North Carolina, and the plaintiff was moving to Virginia allegedly to go to school, these findings were sufficient to show that North Carolina was a convenient forum for the continued exercise of jurisdiction. Wilson v. Wilson, 121 N.C. App. 292, 465 S.E.2d 44, 1996 N.C. App. LEXIS 9 (1996).

Trial court did not abuse the court’s discretion in denying a mother’s motion to transfer, pursuant to G.S. 50A-207, a custody matter from North Carolina to California because the trial court’s findings showed that the court considered relevant factors in determining whether jurisdiction was to be transferred and the findings were sufficient. Velasquez v. Ralls, 192 N.C. App. 505, 665 S.E.2d 825, 2008 N.C. App. LEXIS 1611 (2008).

North Carolina court had jurisdiction to modify an Illinois custody order because (1) the North Carolina court had jurisdiction to enter an initial custody order due to an Illinois judge’s transfer of the case to North Carolina since the mother had not lived in Illinois for a number of years and the child’s alleged abuse occurred in North Carolina, tantamount to finding North Carolina was the more appropriate forum, (2) the record showed the mother and child had a significant connection with North Carolina other than mere physical presence, and (3) substantial evidence was available in North Carolina as the child’s alleged sexual assault and other acts of neglect by the mother occurred in North Carolina, and the Illinois court found North Carolina was a more convenient forum. In re T.R., 250 N.C. App. 386, 792 S.E.2d 197, 2016 N.C. App. LEXIS 1161 (2016).

Trial court properly granted a mother’s motion to remove to the State of Ohio as North Carolina was an inconvenient forum because it considered the relevant factors in the Uniform Child-Custody Jurisdiction and Enforcement Act and made appropriate findings of fact on those factors based on the evidence the parties chose to submit. Harter v. Eggleston, 272 N.C. App. 579, 847 S.E.2d 444, 2020 N.C. App. LEXIS 571 (2020).

Findings Required. —

Trial court’s order transferring jurisdiction to Michigan, ending review hearings, and not returning custody to the parents was reversed and the matter was remanded because the court failed to make necessary statutory findings to support its decision and failed to set out an adequate visitation schedule. In re M.M., 230 N.C. App. 225, 750 S.E.2d 50, 2013 N.C. App. LEXIS 1143 (2013).

Findings Unnecessary. —

Any findings regarding the analysis of whether North Carolina was an inconvenient forum were unnecessary, since the trial court should not conduct such an inquiry unless it had jurisdiction. In re C.M.B., 826 S.E.2d 810, 2019 N.C. App. LEXIS 307 (Ct. App. 2019).

Motion to Stay. —

Even if a mother’s letter was considered a proper motion to stay proceedings, because the trial court never entered an order ruling the mother’s “motion to stay” letter, the court of appeals not have jurisdiction to determine whether the trial court abused its discretion by not granting a stay under the Uniform Child Custody Jurisdiction and Enforcement Act; the letter was not filed stamped or served on the father’s counsel prior to the hearing and did not identify any legal basis for the stay. Waly v. Alkamary, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

Even if a mother’s letter was considered a proper motion to stay proceedings, because the trial court never entered an order ruling the mother’s “motion to stay” letter, the court of appeals not have jurisdiction to determine whether the trial court abused its discretion by not granting a stay under the Uniform Child Custody Jurisdiction and Enforcement Act; the letter was not filed stamped or served on the father’s counsel prior to the hearing and did not identify any legal basis for the stay. Waly v. Alkamary, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

OFFICIAL COMMENT

The “Clean Hands” section of the UCCJA has been truncated in this Act. Since there is no longer a multiplicity of jurisdictions which could take cognizance of a child-custody proceeding, there is less of a concern that one parent will take the child to another jurisdiction in an attempt to find a more favorable forum. Most of the jurisdictional problems generated by abducting parents should be solved by the prioritization of home State in Section 201; the exclusive, continuing jurisdiction provisions of Section 202; and the ban on modification in Section 203. For example, if a parent takes the child from the home State and seeks an original custody determination elsewhere, the stay-at-home parent has six months to file a custody petition under the extended home state jurisdictional provision of Section 201, which will ensure that the case is retained in the home State. If a petitioner for a modification determination takes the child from the State that issued the original custody determination, another State cannot assume jurisdiction as long at the first State exercises exclusive, continuing jurisdiction.

Nonetheless, there are still a number of cases where parents, or their surrogates, act in a reprehensible manner, such as removing, secreting, retaining, or restraining the child. This section ensures that abducting parents will not receive an advantage for their unjustifiable conduct. If the conduct that creates the jurisdiction is unjustified, courts must decline to exercise jurisdiction that is inappropriately invoked by one of the parties. For example, if one parent abducts the child pre-decree and establishes a new home State, that jurisdiction will decline to hear the case. There are exceptions. If the other party has acquiesced in the court’s jurisdiction, the court may hear the case. Such acquiescence may occur by filing a pleading submitting to the jurisdiction, or by not filing in the court that would otherwise have jurisdiction under this Act. Similarly, if the court that would have jurisdiction finds that the court of this State is a more appropriate forum, the court may hear the case.

This section applies to those situations where jurisdiction exists because of the unjustified conduct of the person seeking to invoke it. If, for example, a parent in the State with exclusive, continuing jurisdiction under Section 202 has either restrained the child from visiting with the other parent, or has retained the child after visitation, and seeks to modify the decree, this section in inapplicable. The conduct of restraining or retaining the child did not create jurisdiction. Jurisdiction existed under this Act without regard to the parent’s conduct. Whether a court should decline to hear the parent’s request to modify is a matter of local law.

The focus in this section is on the unjustified conduct of the person who invokes the jurisdiction of the court. A technical illegality or wrong is insufficient to trigger the applicability of this section. This is particularly important in cases involving domestic violence and child abuse. Domestic violence victims should not be charged with unjustifiable conduct for conduct that occurred in the process of fleeing domestic violence, even if their conduct is technically illegal. Thus, if a parent flees with a child to escape domestic violence and in the process violates a joint custody decree, the case should not be automatically dismissed under this section. An inquiry must be made into whether the flight was justified under the circumstances of the case. However, an abusive parent who seizes the child and flees to another State to establish jurisdiction has engaged in unjustifiable conduct and the new State must decline to exercise jurisdiction under this section.

Subsection (b) authorizes the court to fashion an appropriate remedy for the safety of the child and to prevent a repetition of the unjustified conduct. Thus, it would be appropriate for the court to notify the other parent and to provide for foster care for the child until the child is returned to the other parent. The court could also stay the proceeding and require that a custody proceeding be instituted in another State that would have jurisdiction under this Act. It should be noted that the court is not making a forum non conveniens analysis in this section. If the conduct is unjustifiable, it must decline jurisdiction. It may, however, retain jurisdiction until a custody proceeding is commenced in the appropriate tribunal if such retention is necessary to prevent a repetition of the wrongful conduct or to ensure the safety of the child.

The attorney’s fee standard for this section is patterned after the International Child Abduction Remedies Act, 42 U.S.C. § 11607(b)(3). The assessed costs and fees are to be paid to the respondent who established that jurisdiction was based on unjustifiable conduct.

Legal Periodicals.

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Editor’s Note. —

Many of the cases cited below were decided under former G.S. 50A-8.

Findings of Court Where Child Is Improperly Retained in This State. —

Even when the district court has jurisdiction over the person of the out-of-state parent in an action to modify a foreign custody decree, it has no authority to exercise its jurisdiction without making findings of fact which support the conclusion that such exercise is required in the interest of the child, if the record shows that the parent seeking the modification has improperly retained the child. Jerson v. Jerson, 68 N.C. App. 738, 315 S.E.2d 522, 1984 N.C. App. LEXIS 3596 (1984).

A recitation in the trial court’s order that it was in the best interest of child who was improperly retained by mother in this state that it assume jurisdiction did not comply with the stated policy of the former UCCJA or with the case law, as it did not contain specific facts. Jerson v. Jerson, 68 N.C. App. 738, 315 S.E.2d 522, 1984 N.C. App. LEXIS 3596 (1984).

Findings Where Child Is Abducted. —

The trial court was not required by former G.S. 50A-8 to decline jurisdiction of a proceeding to modify a Virginia child custody decree merely because the mother had abducted one of the children and had taken her to this State if the court properly determined that it was in the best interest of the children that the court exercise jurisdiction despite the abduction; however, as the trial court’s conclusion that it should exercise jurisdiction was unsupported by findings of fact, the case would be remanded for such findings. Williams v. Richardson, 53 N.C. App. 663, 281 S.E.2d 777, 1981 N.C. App. LEXIS 2722 (1981).

Mother Acquiesced to Jurisdiction In State. —

Even assuming, arguendo, that the grandmother was a person seeking to invoke jurisdiction in North Carolina, and that she engaged in unjustifiable conduct by moving with the child to North Carolina, the mother clearly acquiesced to the jurisdiction of North Carolina by registering the Florida order in North Carolina, and by filing her action here, and none of the orders were void for lack of subject matter jurisdiction. Quevedo-Woolf v. Overholser, 261 N.C. App. 387, 820 S.E.2d 817, 2018 N.C. App. LEXIS 946 (2018).

Trial court had jurisdiction to modify an out-of-state child custody order because North Carolina was the home state as the father and the children lived in North Carolina for at least six months before the custody proceedings; the New York child custody order specifically stated it was relinquishing jurisdiction; and the mother acquiesced to the trial court’s jurisdiction. Malone-Pass v. Schultz, 868 S.E.2d 327, 2021- NCCOA-656, 2021 N.C. App. LEXIS 680 (Ct. App. 2021).

Significant Connection Jurisdiction Not Declined. —

It was error for a North Carolina trial court to exercise custody modification jurisdiction because, inter alia, North Carolina had no jurisdiction under G.S. 50A-201(a)(3) or (4) as Utah or Florida had not declined their “significant connection” jurisdiction. Gerhauser v. Van Bourgondien, 238 N.C. App. 275, 767 S.E.2d 378, 2014 N.C. App. LEXIS 1395 (2014).

California court did not obtain jurisdiction over child custody proceedings substantially in conformity with this Chapter where North Carolina rather than California was the home state of the children; there was no evidence that the children had a “significant connection” with California or that “substantial evidence” was available in California concerning the children’s care; and there was significant evidence that defendant had on several occasions taken the children from North Carolina to California without plaintiff’s consent. Davis v. Davis, 53 N.C. App. 531, 281 S.E.2d 411, 1981 N.C. App. LEXIS 2703 (1981).

OFFICIAL COMMENT

The pleading requirements from Section 9 of the UCCJA [former G.S. 50A-9] are generally carried over into this Act. However, the information is made subject to local law on the protection of names and other identifying information in certain cases. A number of States have enacted laws relating to the protection of victims in domestic violence and child abuse cases which provide for the confidentiality of victims names, addresses, and other information. These procedures must be followed if the child-custody proceeding of the State requires their applicability. See, e.g., California Family Law Code § 3409(a). If a State does not have local law that provides for protecting names and addresses, then subsection (e) or a similar provision should be adopted. Subsection (e) is based on the National Council of Juvenile and Family Court Judge’s, Model Code on Domestic and Family Violence § 304(c). There are other models to choose from, in particular UIFSA 312.

In subsection (a)(2), the term “proceedings” should be read broadly to include more than custody proceedings. Thus, if one parent was being criminally prosecuted for child abuse or custodial interference, those proceedings should be disclosed. If the child is subject to the Interstate Compact on the Placement of Children, facts relating to compliance with the Compact should be disclosed in the pleading or affidavit.

Subsection (b) has been added. It authorizes the court to stay the proceeding until the information required in subsection (a) has been disclosed, although failure to provide the information does not deprive the court of jurisdiction to hear the case. This follows the majority of jurisdictions which held that failure to comply with the pleading requirements of the UCCJA did not deprive the court of jurisdiction to make a custody determination.

Legal Periodicals.

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under former G.S. 50A-9.

Former G.S. 50A-9 required that every party in a custody pleading give information under oath regarding the children’s present address, the places where they lived within the last five years, and the names and present addresses of the persons with whom the children lived during that period. Bhatti v. Bhatti, 98 N.C. App. 493, 391 S.E.2d 201, 1990 N.C. App. LEXIS 423 (1990).

Subject Matter Jurisdiction. —

Even where the juvenile petition filed by the county social services department failed to attach an affidavit as to the status of the minor child, the trial court did not lack subject matter jurisdiction over the minor child’s neglect and dependency proceeding; although the better practice was to attach the affidavit, the failure to file the affidavit did not by itself divest the trial court of subject matter jurisdiction. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18, 2007 N.C. App. LEXIS 375 (2007).

In dependency proceedings brought under G.S. 7B-101, the failure to file an affidavit complying with G.S. 50A-209(a) did not deprive the trial court of jurisdiction because nothing in the statute suggested that the information to be provided in this affidavit was jurisdictional; to the contrary, much statutory language led to the opposite conclusion because: (1) the information was required only if reasonably ascertainable; (2) if the information was not furnished at the outset, the court could stay the proceeding until the information was furnished; and (3) the statute required both parties to submit the information, and it would defy reason to suggest that a parent could defeat the court’s jurisdiction by his or her own noncompliance with the statute. In re A.R.G., 361 N.C. 392, 646 S.E.2d 349, 2007 N.C. LEXIS 597 (2007).

Inaccuracy in address information for the children named in an affidavit supporting an abuse and neglect petition did not lead to lack of subject matter jurisdiction because the required information was known to the parents and was provided during the course of the hearing. In re M.G., 187 N.C. App. 536, 653 S.E.2d 581, 2007 N.C. App. LEXIS 2573 (2007), cert. dismissed, 666 S.E.2d 120, 2008 N.C. LEXIS 706 (2008), rev'd in part, 363 N.C. 570, 681 S.E.2d 290, 2009 N.C. LEXIS 731 (2009), aff'd in part, rev'd in part, 2010 N.C. App. LEXIS 958 (N.C. Ct. App. June 15, 2010).

Trial court’s orders granting the county department of social services (DSS) custody of a child were not void for lack of subject matter jurisdiction because it was reasonable to infer that Oklahoma did not have continuing jurisdiction; the trial court found only another child was removed from the mother’s custody by child protective services in Oklahoma, and the mother stipulated that the child protective services matter in Oklahoma had been closed, a fact she had a duty to disclose. In re S.E., 373 N.C. 360, 838 S.E.2d 328, 2020 N.C. LEXIS 94 (2020).

Proper Exercise of Jurisdiction Despite Noncompliance with Oath Requirements. —

Court of appeals declined to accept plaintiff ’s argument that failure to comply fully with former G.S. 50A-9’s oath requirements defeated the court’s subject matter jurisdiction. Pheasant v. McKibben, 100 N.C. App. 379, 396 S.E.2d 333, 1990 N.C. App. LEXIS 985 (1990).

Failure of a county department of social services to comply with G.S. 50A-209 by failing to file an affidavit with the petition to terminate parental rights did not divest the trial court of jurisdiction in the termination proceeding; furthermore, the trial court was not required to stay the proceedings because the trial court’s allowing the county department five days to file the affidavit was not prejudicial to the mother, as the trial court was able to determine whether jurisdiction existed prior to rendering its decision. In re Clark, 159 N.C. App. 75, 582 S.E.2d 657, 2003 N.C. App. LEXIS 1444 (2003).

Purpose of Oath Requirement. —

An obvious purpose of the requirement of former G.S. 50A-9 that certain information be presented under oath was to enable the court to determine whether it should properly exercise jurisdiction, under the former UCCJA, of a child custody dispute. Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444, 1985 N.C. App. LEXIS 4397 (1985).

Affidavit Not Prerequisite to Jurisdiction Obtained under former G.S. 7A-523. —

Where the court obtained jurisdiction over a juvenile matter pursuant to former G.S. 7A-523, and not the former UCCJA, the affidavit referred to in this section was not a prerequisite to its jurisdiction. In re Botsford, 75 N.C. App. 72, 330 S.E.2d 23, 1985 N.C. App. LEXIS 3613 (1985).

Requirements for a Verified Petition. —

Petitioner-parent was required to include in a verified petition information that the parties agreed through mediation in a New Jersey court that the parent would be awarded custody of the parties child. In re J.A.P., 218 N.C. App. 190, 721 S.E.2d 253, 2012 N.C. App. LEXIS 65 (2012).

Where Texas decree made no findings of fact to support its exercise of jurisdiction in determining custody of child, the North Carolina trial court correctly found and concluded that the Texas court had not assumed jurisdiction over the custody determination in substantial conformity with the former UCCJA or upon a finding of factual circumstances meeting the jurisdictional requirements of the former UCCJA. Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444, 1985 N.C. App. LEXIS 4397 (1985).

OFFICIAL COMMENT

No major changes have been made to this section which was Section 11 of the UCCJA [former G.S. 50A-11.] Language was added to subsection (a) to authorize the court to require a non-party who has physical custody of the child to produce the child.

Subsection (c) authorizes the court to enter orders providing for the safety of the child and the person ordered to appear with the child. If safety is a major concern, the court, as an alternative to ordering a party to appear with the child, could order and arrange for the party’s testimony to be taken in another State under Section 111. This alternative might be important when there are safety concerns regarding requiring victims of domestic violence or child abuse to travel to the jurisdiction where the abuser resides.

OFFICIAL COMMENT

For purposes of this article, “petitioner” and “respondent” are defined. The definitions clarify certain aspects of the notice and hearing sections.

Legal Periodicals.

For article, “When Petitioners Seek Custody in Domestic Violence Court and Why We Should Take Them Seriously,” see 47 Wake Forest L. Rev. 935 (2012).

CASE NOTES

No Attorney Fees After Contempt Motion. —

Father’s request for attorney fees was properly denied as a mother had filed a motion for contempt; she did not seek the expedited enforcement of a child custody determination, seek to register an out-of-state order, or otherwise utilize the remedies set forth in Part 3 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and thus Part 3 of the UCCJEA was not implicated and G.S. 50A-312 did not apply. Creighton v. Lazell-Frankel, 178 N.C. App. 227, 630 S.E.2d 738, 2006 N.C. App. LEXIS 1314 (2006).

OFFICIAL COMMENT

This section applies the enforcement remedies provided by this article to orders requiring the return of a child issued under the authority of the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq., implementing the Hague Convention on the Civil Aspects of International Child Abduction. Specific mention of ICARA proceedings is necessary because they often occur prior to any formal custody determination. However, the need for a speedy enforcement remedy for an order to return the child is just as necessary.

OFFICIAL COMMENT

This section is based on Section 13 of the UCCJA [former G.S. 50A-13] which contained the basic duty to enforce. The language of the original section has been retained and the duty to enforce is generally the same.

Enforcement of custody determinations of issuing States is also required by federal law in the PKPA, 28 U.S.C. § 1738A(a). The changes made in Article 2 of this Act now make a State’s duty to enforce and not modify a child custody determination of another State consistent with the enforcement and nonmodification provisions of the PKPA. Therefore custody determinations made by a State pursuant to the UCCJA that would be enforceable under the PKPA will generally be enforced under this Act. However, if a State custody determination made pursuant to the UCCJA would not be enforceable under the PKPA, it will also not be enforceable under this Act. Thus a custody determination made by a “significant connection” jurisdiction when there is a home State is not enforceable under the PKPA regardless of whether a proceeding was ever commenced in the home State. Even though such a determination would be enforceable under the UCCJA with its four concurrent bases of jurisdiction, it would not be enforceable under this Act. This carries out the policy of the PKPA of strongly discouraging a State from exercising its concurrent “significant connection” jurisdiction under the UCCJA when another State could exercise “home state” jurisdiction.

This section also incorporates the concept of Section 15 of the UCCJA [former G.S. 50A-15] to the effect that a custody determination of another State will be enforced in the same manner as a custody determination made by a court of this State. Whatever remedies are available to enforce a local determination can be utilized to enforce a custody determination of another State. However, it remains a custody determination of the State that issued it. A child-custody determination of another State is not subject to modification unless the State would have jurisdiction to modify the determination under Article 2.

The remedies provided by this article for the enforcement of a custody determination will normally be used. This article does not detract from other remedies available under other local law. There is often a need for a number of remedies to ensure that a child-custody determination is obeyed. If other remedies would easily facilitate enforcement, they are still available. The petitioner, for example, can still cite the respondent for contempt of court or file a tort claim for intentional interference with custodial relations if those remedies are available under local law.

CASE NOTES

Appellate Review. —

When a mother contested a trial court’s jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the mother’s failure to include another state’s initial custody order in the appellate record did not bar an appellate court’s consideration of the issue because (1) a jurisdictional issue was raised, and (2) the UCCJEA and Parental Kidnapping Prevention Act required North Carolina to recognize another state’s valid custody order. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228, 2015 N.C. App. LEXIS 989 (2015).

OFFICIAL COMMENT

This section authorizes a court to issue a temporary order if it is necessary to enforce visitation rights without violating the rules on nonmodification contained in Section 303. Therefore, if there is a visitation schedule provided in the custody determination that was made in accordance with Article 2, a court can issue an order under this section implementing the schedule. An implementing order may include make-up or substitute visitation.

A court may also issue a temporary order providing for visitation if visitation was authorized in the custody determination, but no specific schedule was included in the custody determination. Such an order could include a substitution of a specific visitation schedule for “reasonable and seasonable.”

However, a court may not, under subsection (a)(2) provide for a permanent change in visitation. Therefore, requests for a permanent change in the visitation schedule must be addressed to the court with exclusive, continuing jurisdiction under Section 202 or modification jurisdiction under Section 203. As under Section 204, subsection (b) of this section requires that the temporary visitation order stay in effect only long enough to allow the person who obtained the order to obtain a permanent modification in the State with appropriate jurisdiction under Article 2.

OFFICIAL COMMENT

This remainder of this article provides enforcement mechanisms for interstate child custody determinations.

This section authorizes a simple registration procedure that can be used to predetermine the enforceability of a custody determination. It parallels the process in UIFSA for the registration of child support orders. It should be as much of an aid to pro se litigants as the registration procedure of UIFSA.

A custody determination can be registered without any accompanying request for enforcement. This may be of significant assistance in international cases. For example, the custodial parent under a foreign custody order can receive an advance determination of whether that order would be recognized and enforced before sending the child to the United States for visitation. Article 26 of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, 35 I.L.M. 1391 (1996), requires those States which accede to the Convention to provide such a procedure.

Effect of Amendments.

Session Laws 2007-484, s. 8, effective August 30, 2007, substituted “subdivision (a)(3) of this section” for “subdivison (a)(3)” in subdivision (b)(2).

Legal Periodicals.

For note, “A Public Goods Approach to Calculating Reasonable Fees Under Attorney Fee Shifting Statutes,” see 1989 Duke L.J. 438.

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Trial Court Lacked Jurisdiction. —

Trial court lacked subject matter jurisdiction to enter any orders in this case because father failed to include certified copies of the Jerusalem Court’s provisional and final child custody determinations with his petition; father failed to provide the requisite English translation, nothing indicated that the untranslated document was certified to be an exact reproduction of the Jerusalem Court’s original determination, and stamps on the copies reading “Jerusalem Court” was insufficient to render the documents certified true copies. Hamdan v. Freitekh, 271 N.C. App. 383, 844 S.E.2d 338, 2020 N.C. App. LEXIS 382 (2020).

Mother’s petition to register a foreign child support order was in substance and form a petition to register a foreign custody order, as her petition did not request registration and enforcement or contain a sworn statement showing the amount of any arrearage, and the trial court did not err in dismissing this claim for lack of subject matter jurisdiction and failure to state a claim. Even if the court assumed the mother also sought registration under the Uniform Interstate Family Support Act, her petition did not substantially comply with the statute. Halterman v. Halterman, 276 N.C. App. 66, 855 S.E.2d 812, 2021- NCCOA-38, 2021 N.C. App. LEXIS 58 (2021).

Failure to Award Fees and Expenses Upheld. —

Where the court determined that plaintiff had not violated Texas custody decree and that defendant was not entitled to its enforcement in North Carolina, there was no abuse of discretion in the court’s failure to award attorneys’ fees and travel expenses to plaintiff. Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444, 1985 N.C. App. LEXIS 4397 (1985) (decided under former G.S. 50A-15) .

Interpretation of 20-day window. —

Nothing in G.S. 50A-305 requires that a party seeking registration of a child-custody determination issued by a court of another state must wait 20 days before registration is effective. Rather, the 20-day period provides the time frame during which a party may oppose registration on the grounds provided for in the statute or be limited to the sole ground provided in G.S. 50A-308(d)(2). Chick v. Chick, 164 N.C. App. 444, 596 S.E.2d 303, 2004 N.C. App. LEXIS 1036 (2004).

OFFICIAL COMMENT

A registered child-custody determination can be enforced as if it was a child-custody determination of this State. However, it remains a custody determination of the State that issued it. A registered custody order is not subject to modification unless the State would have jurisdiction to modify the order under Article 2.

OFFICIAL COMMENT

The pleading rules of Section 308, require the parties to disclose any pending proceedings. Normally, an enforcement proceeding will take precedence over a modification action since the PKPA requires enforcement of child custody determinations made in accordance with its terms. However, the enforcement court must communicate with the modification court in order to avoid duplicative litigation. The courts might decide that the court with jurisdiction under Article 2 shall continue with the modification action and stay the enforcement proceeding. Or they might decide that the enforcement proceeding shall go forward. The ultimate decision rests with the court having exclusive, continuing jurisdiction under Section 202, or if there is no State with exclusive, continuing jurisdiction, then the decision rests with the State that would have jurisdiction to modify under Section 203. Therefore, if that court determines that the enforcement proceeding should be stayed or dismissed, the enforcement court should stay or dismiss the proceeding. If the enforcement court does not do so, the court with exclusive, continuing jurisdiction under Section 202, or with modification jurisdiction under Section 203, could enjoin the parties from continuing with the enforcement proceeding.

OFFICIAL COMMENT

This section provides the normal remedy that will be used in interstate cases: the production of the child in a summary, remedial process based on habeas corpus.

The petition is intended to provide the court with as much information as possible. Attaching certified copies of all orders sought to be enforced allows the court to have the necessary information. Most of the information relates to the permissible scope of the court’s inquiry. The petitioner has the responsibility to inform the court of all proceedings that would affect the current enforcement action. Specific mention is made of certain proceedings to ensure that they are disclosed. A ‘procedure relating to domestic violence‘ includes not only protective order proceedings but also criminal prosecutions for child abuse or domestic violence.

The order requires the respondent to appear at a hearing on the next judicial day. The term ‘next judicial day’ in this section means the next day when a judge is at the courthouse. At the hearing, the court will order the child to be delivered to the petitioner unless the respondent is prepared to assert that the issuing State lacked jurisdiction, that notice was not given in accordance with Section 108, or that the order sought to be enforced has been vacated, modified, or stayed by a court with jurisdiction to do so under Article 2. The court is also to order payment of the fees and expenses set out in Section 312. The court may set another hearing to determine whether additional relief available under this state’s law should be granted.

If the order has been registered and confirmed in accordance with Section 304, the only defense to enforcement is that the order has been vacated, stayed or modified since the registration proceeding by a court with jurisdiction to do so under Article 2.

CASE NOTES

Interpretation of 20-day Window After Registration. —

Nothing in G.S. 50A-305 requires that a party seeking registration of a child-custody determination issued by a court of another state must wait 20 days before registration is effective. Rather, the 20-day period provides the time frame during which a party may oppose registration on the grounds provided for in the statute or be limited to the sole ground provided in G.S. 50A-308(d)(2). Chick v. Chick, 164 N.C. App. 444, 596 S.E.2d 303, 2004 N.C. App. LEXIS 1036 (2004).

Procedure. —

Under the Uniform Child-Custody Jurisdiction and Enforcement Act, a party wishing to enforce a child-custody determination of another state with jurisdiction must file a petition for enforcement with a court of the state in which the respondent is located. In re Q.V., 164 N.C. App. 737, 596 S.E.2d 867, 2004 N.C. App. LEXIS 1140, cert. denied, 358 N.C. 732, 601 S.E.2d 859, 2004 N.C. LEXIS 1007 (2004).

Trial court erred in granting a petition filed by a city department of children’s services under the Hague Convention on the Civil Aspects of International Child Abduction seeking an order returning a child to Germany because the Hague Convention petition was not verified in violation of the Uniform Child-Custody Jurisdiction and Enforcement Act, G.S. 50A-308(a), and the failure to verify the petition deprived the trial court of subject matter jurisdiction. Obo v. Steven B., 201 N.C. App. 532, 687 S.E.2d 496, 2009 N.C. App. LEXIS 2325 (2009).

Failure to verify a juvenile petition as required under G.S. 7B-403 deprives the trial court of subject matter jurisdiction, and there is no meaningful basis for distinguishing between a juvenile petition and a Hague Convention on the Civil Aspects of International Child Abduction petition when it comes to the verification requirement; because of the mandatory nature of the remedy under the Hague Convention, which entails removing a child from a parent and returning the child to another country, the interests at stake have the same magnitude and the potential consequences of any error would be just as devastating as with a juvenile petition, and the failure to verify a petition filed pursuant to the Hague Convention deprives the trial court of subject matter jurisdiction over that petition. Obo v. Steven B., 201 N.C. App. 532, 687 S.E.2d 496, 2009 N.C. App. LEXIS 2325 (2009).

Trial Court Lacked Jurisdiction. —

Trial court lacked subject matter jurisdiction to enter any orders in this case because father failed to include certified copies of the Jerusalem Court’s provisional and final child custody determinations with his petition; father failed to provide the requisite English translation, nothing indicated that the untranslated document was certified to be an exact reproduction of the Jerusalem Court’s original determination, and stamps on the copies reading “Jerusalem Court” was insufficient to render the documents certified true copies. Hamdan v. Freitekh, 271 N.C. App. 383, 844 S.E.2d 338, 2020 N.C. App. LEXIS 382 (2020).

OFFICIAL COMMENT

In keeping with other sections of this Act, the question of how the petition and order should be served is left to local law.

OFFICIAL COMMENT

The scope of inquiry for the enforcing court is quite limited. Federal law requires the court to enforce the custody determination if the issuing state’s decree was rendered in compliance with the PKPA. 28 U.S.C. § 1738A(a). This Act requires enforcement of custody determinations that are made in conformity with Article 2’s jurisdictional rules.

The certified copy, or a copy of the certified copy, of the custody determination entitling the petitioner to the child is prima facie evidence of the issuing court’s jurisdiction to enter the order. If the order is one that is entitled to be enforced under Article 2 and if it has been violated, the burden shifts to the respondent to show that the custody determination is not entitled to enforcement.

It is a defense to enforcement that another jurisdiction has issued a custody determination that is required to be enforced under Article 2. An example is when one court has based its original custody determination on the UCCJA § 3(a)(2) [former G.S. 50A-3(a)(2)] (significant connections) and another jurisdiction has rendered an original custody determination based on the UCCJA § 3(a)(1) [former G.S. 50A-3(a)(1)] (home State). When this occurs, Article 2 of this Act, as well as the PKPA, mandate that the home state determination be enforced in all other States, including the State that rendered the significant connections determination.

Lack of notice in accordance with Section 108 by a person entitled to notice and opportunity to be heard at the original custody determination is a defense to enforcement of the custody determination. The scope of the defense under this Act is the same as the defense would be under the law of the State that issued the notice. Thus, if the defense of lack of notice would not be available under local law if the respondent purposely hid from the petitioner, took deliberate steps to avoid service of process or elected not to participate in the initial proceedings, the defense would also not be available under this Act.

There are no other defenses to an enforcement action. If the child would be endangered by the enforcement of a custody or visitation order, there may be a basis for the assumption of emergency jurisdiction under Section 204 of this Act. Upon the finding of an emergency, the court issues a temporary order and directs the parties to proceed either in the court that is exercising continuing jurisdiction over the custody proceeding under Section 202, or the court that would have jurisdiction to modify the custody determination under Section 203.

The court shall determine at the hearing whether fees should be awarded under Section 312. If so, it should order them paid. The court may determine if additional relief is appropriate, including requesting law enforcement officers to assist the petitioner in the enforcement of the order. The court may set a hearing to determine whether further relief should be granted.

The remainder of this section is derived from UIFSA § 316 with regard to the privilege of self-incrimination, spousal privileges, and immunities. It is included to keep parallel the procedures for child support and child custody proceedings to the extent possible.

OFFICIAL COMMENT

The section provides a remedy for emergency situations where there is a reason to believe that the child will suffer imminent, serious physical harm or be removed from the jurisdiction once the respondent learns that the petitioner has filed an enforcement proceeding. If the court finds such harm exists, it should temporarily waive the notice requirements and issue a warrant to take physical custody of the child. Immediately after the warrant is executed, the respondent is to receive notice of the proceedings.

The term “harm” cannot be totally defined and, as in the issuance of temporary retraining orders, the appropriate issuance of a warrant is left to the circumstances of the case. Those circumstances include cases where the respondent is the subject of a criminal proceeding as well as situations where the respondent is secreting the child in violation of a court order, abusing the child, a flight risk and other circumstances that the court concludes make the issuance of notice a danger to the child. The court must hear the testimony of the petitioner or another witness prior to issuing the warrant. The testimony may be heard in person, via telephone, or by any other means acceptable under local law. The court must State the reasons for the issuance of the warrant. The warrant can be enforced by law enforcement officers wherever the child is found in the State. The warrant may authorize entry upon private property to pick up the child if no less intrusive means are possible. In extraordinary cases, the warrant may authorize law enforcement to make a forcible entry at any hour.

The warrant must provide for the placement of the child pending the determination of the enforcement proceeding. Since the issuance of the warrant would not occur absent a risk of serious harm to the child, placement cannot be with the respondent. Normally, the child would be placed with the petitioner. However, if placement with the petitioner is not indicated, the court can order any other appropriate placement authorized under the laws of the court’s State. Placement with the petitioner may not be indicated if there is a likelihood that the petitioner also will flee the jurisdiction. Placement with the petitioner may not be practical if the petitioner is proceeding through an attorney and is not present before the court.

This section authorizes the court to utilize whatever means are available under local law to ensure the appearance of the petitioner and child at the enforcement hearing. Such means might include cash bonds, a surrender of a passport, or whatever the court determines is necessary.

Effect of Amendments.

Session Laws 2017-22, s. 3, in subsection (e), substituted “not available” for “not effective” in the middle of the second sentence, and added the last two sentences. For effective date and applicability, see editor’s note.

CASE NOTES

Order Authorizing Use of Law Enforcement Officials Vacated. —

North Carolina order enforcing a Vermont child custody order directing the assistance of law enforcement officials in returning minor children involved in a custody dispute to Vermont to their father was vacated where none of the statutory circumstances allowing for use of law enforcement officials was present in the case. Chick v. Chick, 164 N.C. App. 444, 596 S.E.2d 303, 2004 N.C. App. LEXIS 1036 (2004).

OFFICIAL COMMENT

This section is derived from the International Child Abduction Remedies Act, 42 U.S.C. § 11607(b)(3). Normally the court will award fees and costs against the non-prevailing party. Included as expenses are the amount of investigation fees incurred by private persons or by public officials as well as the cost of child placement during the proceedings.

The non-prevailing party has the burden of showing that such an award would be clearly inappropriate. Fees and costs may be inappropriate if their payment would cause the parent and child to seek public assistance.

This section implements the policies of Section 8(c) of Pub.L. 96-611 (part of the PKPA) which provides that:

In furtherance of the purposes of section 1738A of title 28, United States Code [this section], as added by subsection (a) of this section, State courts are encouraged to — (2) award to the person entitled to custody or visitation pursuant to a custody determination which is consistent with the provisions of such section 1738A [this section], necessary travel expenses, attorneys’ fees, costs of private investigations, witness fees or expenses, and other expenses incurred in connection with such custody determination . . . .

The term “prevailing party” is not given a special definition for this Act. Each State will apply its own standard.

Subsection (b) was added to ensure that this section would not apply to the State unless otherwise authorized. The language is taken from UIFSA § 313 (court may assess costs against obligee or support enforcement agency only if allowed by local law).

CASE NOTES

Recovery of Costs Against County Department of Social Services. —

When a child was adjudicated dependent and neglected pursuant to a petition filed by a county department of social services, after which the trial court relinquished jurisdiction to the state in which the child’s parents were divorced, the child’s father, who was successful in obtaining an award of custody of the child, was not entitled to recover his costs in doing so from the county department because the department was an agency of the state, and costs could not be awarded against the state under this statute unless they were authorized by a law other than the Uniform Child-Custody Jurisdiction and Enforcement Act, G.S. 50A-101 et seq., which they were not. In re Q.V., 164 N.C. App. 737, 596 S.E.2d 867, 2004 N.C. App. LEXIS 1140, cert. denied, 358 N.C. 732, 601 S.E.2d 859, 2004 N.C. LEXIS 1007 (2004).

There is no indication, explicit or implicit, that the North Carolina General Assembly intended to exclude county departments of social services from its meaning of the word “state” as used generally in the Uniform Child-Custody Jurisdiction and Enforcement Act, G.S. 50A-101 et seq., and specifically in G.S. 50A-312(b). In re Q.V., 164 N.C. App. 737, 596 S.E.2d 867, 2004 N.C. App. LEXIS 1140, cert. denied, 358 N.C. 732, 601 S.E.2d 859, 2004 N.C. LEXIS 1007 (2004).

Recovery of Costs Against State. —

G.S. 50A-312(a) obligates a court to award fees, costs, and expenses to the prevailing party of a petition for enforcement of a child-custody determination pursuant to G.S. 50A-308 unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate, but G.S. 50A-312(b) specifically provides that fees, costs and expenses may not be awarded against a state unless authorized by some law other than the Uniform Child-Custody Jurisdiction and Enforcement Act, G.S. 50A-101 et seq. In re Q.V., 164 N.C. App. 737, 596 S.E.2d 867, 2004 N.C. App. LEXIS 1140, cert. denied, 358 N.C. 732, 601 S.E.2d 859, 2004 N.C. LEXIS 1007 (2004).

No Attorney Fees After Contempt Motion. —

Father’s request for attorney fees was properly denied as a mother had filed a motion for contempt; she did not seek the expedited enforcement of a child custody determination, seek to register an out-of-state order, or otherwise utilize the remedies set forth in Part 3 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and thus Part 3 of the UCCJEA was not implicated and G.S. 50A-312 did not apply. Creighton v. Lazell-Frankel, 178 N.C. App. 227, 630 S.E.2d 738, 2006 N.C. App. LEXIS 1314 (2006).

OFFICIAL COMMENT

The enforcement order, to be effective, must also be enforced by other States. This section requires courts of this State to enforce and not modify enforcement orders issued by other States when made consistently with the provisions of this Act.

Legal Periodicals.

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 50A-13.

State Issuing Order Need Not Have Adopted former UCCJA. —

States which have adopted the former Uniform Child Custody Jurisdiction Act must enforce an out-of-state custody order which substantially complies with the terms of the former UCCJA, regardless of whether the state issuing the order has adopted the former UCCJA. Copeland v. Copeland, 68 N.C. App. 276, 314 S.E.2d 297, 1984 N.C. App. LEXIS 3213 (1984).

To modify a foreign child custody decree, trial court must detail a substantial change in circumstances affecting the welfare of the child, unless the court finds that the foreign decree was a disciplinary or punitive measure. Williams v. Richardson, 53 N.C. App. 663, 281 S.E.2d 777, 1981 N.C. App. LEXIS 2722 (1981).

Failure to Attempt Service. —

Where there was no attempt to serve other parent with notice of a Tennessee temporary custody hearing and she in fact never received notice of the hearing, the Tennessee court did not act substantially in conformity with the former UCCJA, and the order made by the Tennessee court was jurisdictionally defective. Henson v. Henson, 95 N.C. App. 777, 384 S.E.2d 70, 1989 N.C. App. LEXIS 862 (1989).

Where the court of another state has not properly assumed jurisdiction, the courts of this State are not bound to recognize and enforce the out-of-state judgment. Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444, 1985 N.C. App. LEXIS 4397 (1985).

OFFICIAL COMMENT

The order may be appealed as an expedited civil matter. An enforcement order should not be stayed by the court. Provisions for a stay would defeat the purpose of having a quick enforcement procedure. If there is a risk of serious mistreatment or abuse to the child, a petition to assume emergency jurisdiction must be filed under Section 204. This section leaves intact the possibility of obtaining an extraordinary remedy such as mandamus or prohibition from an appellate court to stay the court’s enforcement action. In many States, it is not possible to limit the constitutional authority of appellate courts to issue a stay. However, unless the information before the appellate panel indicates that emergency jurisdiction would be assumed under Section 204, there is no reason to stay the enforcement of the order pending appeal.

OFFICIAL COMMENT

Sections 315-317 are derived from the recommendations of the Obstacles Study that urge a role for public authorities in civil enforcement of custody and visitation determinations. One of the basic policies behind this approach is that, as is the case with child support, the involvement of public authorities will encourage the parties to abide by the terms of the court order. The prosecutor usually would be the most appropriate public official to exercise authority under this section. However, States may locate the authority described in the section in the most appropriate public office for their governmental structure. The authority could be, for example, the Friend of the Court Office or the Attorney General. If the parties know that prosecutors and law enforcement officers are available to help secure the return of a child, the parties may be deterred from interfering with the exercise of rights established by court order.

The use of public authorities should provide a more effective method of remedying violations of the custody determination. Most parties do not have the resources to enforce a custody determination in another jurisdiction. The availability of the prosecutor or other government official as an enforcement agency will help ensure that remedies of this Act can be made available regardless of income level. In addition, the prosecutor may have resources to draw on that are unavailable to the average litigant.

The role of the public authorities should generally not begin until there is a custody determination that is sought to be enforced. The Act does not authorize the public authorities to be involved in the action leading up to the making of the custody determination, except when requested by the court, when there is a violation the Hague Convention on the Civil Aspects of International Child Abduction, or when the person holding the child has violated a criminal statute. This Act does not mandate that the public authorities be involved in all cases referred to it. There is only so much time and money available for enforcement proceedings. Therefore, the public authorities eventually will develop guidelines to determine which cases will receive priority.

The use of civil procedures instead of, or in addition to, filing and prosecuting criminal charges enlarges the prosecutor’s options and may provide a more economical and less disruptive means of solving problems of criminal abduction and retention. With the use of criminal proceedings alone, the procedure may be inadequate to ensure the return of the child. The civil options would permit the prosecutor to resolve that recurring and often frustrating problem.

A concern was expressed about whether allowing the prosecutor to use civil means as a method of settling a child abduction violated either DR 7-105(A) of the Code of Professional Responsibility or Model Rule of Professional Responsibility 4.4. Both provisions either explicitly or implicitly disapprove of a lawyer threatening criminal action to gain an advantage in a civil case. However, the prohibition relates to threats that are solely to gain an advantage in a civil case. If the prosecutor has a good faith reason for pursuing the criminal action, there is no ethical violation. See Committee on Legal Ethics v. Printz , 416 S.E.2d 720 (W.Va. 1992) (lawyer can threaten to press criminal charges against a client’s former employee unless employee made restitution).

It must be emphasized that the public authorities do not become involved in the merits of the case. They are authorized only to locate the child and enforce the custody determination. The public authority is authorized by this section to utilize any civil proceeding to secure the enforcement of the custody determination. In most jurisdictions, that would be a proceeding under this Act. If the prosecutor proceeds pursuant to this Act, the prosecutor is subject to its provisions. There is nothing in this Act that would prevent a State from authorizing the prosecutor or other public official to use additional remedies beyond those provided in this Act.

The public authority does not represent any party to the custody determination. It acts as a “friend of the court.” Its role is to ensure that the custody determination is enforced.

Sections 315-317 are limited to cases covered by this Act, i.e. interstate cases. However, States may, if they wish, extend this part of the Act to intrastate cases.

It should also be noted that the provisions of this section relate to the civil enforcement of child custody determinations. Nothing in this section is meant to detract from the ability of the prosecutor to use criminal provisions in child abduction cases.

CASE NOTES

Order Authorizing Use of Law Enforcement Official Vacated. —

North Carolina order enforcing a Vermont child custody order directing the assistance of law enforcement officials in returning minor children involved in a custody dispute to Vermont to their father was vacated where none of the statutory circumstances allowing for use of law enforcement officials was present in the case. Chick v. Chick, 164 N.C. App. 444, 596 S.E.2d 303, 2004 N.C. App. LEXIS 1036 (2004).

OFFICIAL COMMENT

This section authorizes law enforcement officials to assist in locating a child and enforcing a custody determination when requested to do so by the public authorities. It is to be read as an enabling provision. Whether law enforcement officials have discretion in responding to a request by the prosecutor or other public official is a matter of local law.

CASE NOTES

Order Authorizing the Use of Law Enforcement Officials Vacated. —

North Carolina order enforcing a Vermont child custody order directing the assistance of law enforcement officials in returning minor children involved in a custody dispute to Vermont to their father was vacated where none of the statutory circumstances allowing for use of law enforcement officials was present in the case. Chick v. Chick, 164 N.C. App. 444, 596 S.E.2d 303, 2004 N.C. App. LEXIS 1036 (2004).

Court erred in authorizing law enforcement officers to pick up children who were residing with petitioner and deliver them to respondent in an effort to assist Georgia court in enforcing its custody order; while trial court could have resorted to traditional contempt proceedings, there was no statutory basis for invoking the participation of law enforcement officers in producing the children. Bhatti v. Bhatti, 98 N.C. App. 493, 391 S.E.2d 201, 1990 N.C. App. LEXIS 423 (1990) (decided under former G.S. 50A-20) .

OFFICIAL COMMENT

One of the major problems of utilizing public officials to locate children and enforce custody and visitation determinations is cost. This section authorizes the prosecutor and law enforcement to recover costs against the non-prevailing party. The use of the term “direct” indicates that overhead is not a recoverable cost. This section cannot be used to recover the value of the time spent by the public authorities’ attorneys.

CASE NOTES

Limited Contact. —

Trial court erred in determining that it could not grant limited contact to the stepmother for the younger child based upon the prior judicial order which had provisions regarding deployment; and the case was remanded to enter an order granting limited contact with the younger child to the stepmother, unless the trial court determined that the younger child did not have a close and substantial relationship with the stepmother or that limited contact would be contrary to his best interests. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

Joinder of Nonparent Granted Limited Contact. —

Order on appeal granted the stepmother, a nonparent as defined by the Uniform Deployed Parents Custody and Visitation Act, limited contact with the eldest child, so she should have been made a party to the action until the grant of limited contact was terminated; however, the fact that the trial court did not formally order the stepmother to be added as a party did not impair the appellate court’s jurisdiction because she could be made a party even after judgment and by the appellate court when the case was appealed. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

CASE NOTES

Limited Contact. —

Trial court erred in determining that it could not grant limited contact to the stepmother for the younger child based upon the prior judicial order which had provisions regarding deployment; and the case was remanded to enter an order granting limited contact with the younger child to the stepmother, unless the trial court determined that the younger child did not have a close and substantial relationship with the stepmother or that limited contact would be contrary to his best interests. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

Prior Judicial Order. —

Father’s deployment to Africa for over a year obviously impacted the regular weekly schedule as set out in the consent order; thus, under this statute, the eldest child’s consent order was a prior judicial order designating custodial responsibility of a child in the event of deployment. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

Prior Judicial Order. —

Term “prior judicial order” encompasses both temporary and permanent custody orders. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

Standard for Modifying Prior Custody Order. —

As enacted in North Carolina, the Uniform Deployed Parents Custody and Visitation Act allows the trial court to modify a prior custody order with a lesser showing than would normally be required for modification of a permanent order. In other words, the movant need not prove a substantial change in circumstances that was not foreseeable at the time the prior judicial decree was entered. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

Limited Contact. —

Although no change to the provisions of the order regarding caretaking or decision-making was required, the trial court did not err in determining that it would be in the eldest child’s best interest to have limited contact with the stepmother while the father was deployed based on the relationships between the mother, the stepmother, and all four children; and the existing provisions of the eldest child’s consent order. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

CASE NOTES

Caretaking Authority Denied to Stepmother. —

Father did not show that the trial court abused its discretion by denying caretaking authority to the stepmother under this statute because the trial court’s findings showed that it carefully considered the entire family’s situation and tailored the order to address the eldest child’s needs. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

Decision-Making Authority Denied to Stepmother. —

Father did not demonstrate any abuse of discretion by the trial court’s denial of decision-making authority to the stepmother as the trial court had no basis upon which to find that the father would be unable to exercise his decision-making authority because the father did not present evidence that his military duties would substantially interfere with his ability to use telephone, email or text messages to communicate with the mother or that he would normally be unable to respond to the mother within 48 hours. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

CASE NOTES

Limited Contact. —

Although the trial court determined that continued contact between the eldest child and the stepmother and her stepsister and half brother was in her best interest, but the eldest child’s consent order did not address limited contact with a nonparent, the trial court was not bound by the schedule of custodial time granted to the father in the consent order, and the actual schedule and amount of limited contact with a nonparent remained within the discretion of the trial court. Thus, the trial court did not abuse its discretion by granting limited contact to the eldest child on a different and lesser schedule than the father’s usual custodial time under her consent order. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

Limited Contact. —

Trial court erred in determining that it could not grant limited contact to the stepmother for the younger child based upon the prior judicial order which had provisions regarding deployment; and the case was remanded to enter an order granting limited contact with the younger child to the stepmother, unless the trial court determined that the younger child did not have a close and substantial relationship with the stepmother or that limited contact would be contrary to his best interests. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

Joinder of Nonparent Granted Limited Contact. —

Order on appeal granted the stepmother, a nonparent as defined by the Uniform Deployed Parents Custody and Visitation Act, limited contact with the eldest child, so she should have been made a party to the action until the grant of limited contact was terminated; however, the fact that the trial court did not formally order the stepmother to be added as a party did not impair the appellate court’s jurisdiction because she could be made a party even after judgment and by the appellate court when the case was appealed. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

Limited Contact. —

Although no change to the provisions of the order regarding caretaking or decision-making was required, the trial court did not err in determining that it would be in the eldest child’s best interest to have limited contact with the stepmother while the father was deployed based on the relationships between the mother, the stepmother, and all four children; and the existing provisions of the eldest child’s consent order. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

CASE NOTES

Final Custody Order. —

Order on appeal was a final order addressing all issues raised under the Uniform Deployed Parents Custody and Visitation Act, and those issues were independent of the underlying custody claims, so it was otherwise a final order, but for the other pending claims in the same action, and the appellate court had jurisdiction to review it. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).