At certain times of the year, a child of separated parents often spends a significant amount of time with the non-custodial parent. On some occasions, the non-custodial parent will not send the child back to the custodial parent. This can occur for various reasons: real or imagined shortcomings in parenting on the part of the custodial parent, the non-custodial parent wanting to spend more time with the child or a desire to modify or terminate child support obligations to the custodial parent. If the parents reside in different states this can result in various issues and problems.
How Do We Decide Which State Controls?
Fortunately, a version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been enacted in every state. The North Carolina version is contained in the North Carolina General Statutes Chapter 50A. This law is an attempt to standardize jurisdictional requirements and prevent parental kidnapping to obtain a different custody decree from the other state.
Consider the following scenario. A Court Order for a child was issued in New York in 2010 when the child was two years old and the parents resided in the same city. In 2011, the father moves to Monroe, North Carolina. The child resides primarily with his mother in New York. In 2017, the father has a winter holiday visit with the child starting December 17th which is supposed to end when he puts the child on a plane in Charlotte on December 26th. The father does not do so and could file a lawsuit for Custody in Union County, North Carolina, or he could register the New York order and attempt to file a Motion to Modify that order. What should occur under the UCCJEA?
First, 50A-203 states that: “Except as otherwise provided in G.S. 50A-204, a court of this State may not modify a child-custody determination made by a court of another state unless a court of this State has jurisdiction to make an initial determination under G.S. 50A-201(a)(1) or G.S. 50A-201(a)(2) and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under G.S. 50A-202 or that a court of this State would be a more convenient forum under G.S. 50A-207; or
(2) A court of this State or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.”
First, we turn to the initial determination requirements. The child has “resided” in North Carolina for a couple of weeks. The UCCJEA defines the “home state” of the minor child as the state in which the child has lived for the six months immediately prior to the custody proceeding or had been the home state and the child is now absent because he or she has been removed by the individual seeking custody. Obviously, North Carolina is not the “home state” of the child and under these definitions; New York is the home state. Therefore, no modification of the custody order can take place in the North Carolina courts.
Let’s change the scenario somewhat. If the child had resided in North Carolina for over six months, prior to the filing of the new action, then North Carolina would be the home state and New York the issuing state. In this scenario, the two states have concurrent jurisdiction. Under the UCCJEA, the assigned judges in each state would conference and determine which state should assume jurisdiction based on significant connections and evidence within each state relevant to the child’s present or future care, training, and relationships. An order would be issued declaring which state has jurisdiction. Under this scenario, it is possible that North Carolina would end up with jurisdiction.
What if There Is No Home State?
Although more of an initial jurisdictional issue, not one for modification, it is possible that a child does not have a home state (for example, if the child has been moved several times between several states, never being in one state for 6 months or more, or if the minor child is an infant under the age of six months). If there is no home state for the minor child, and
- the child and the child’s parents, or the child and at least one parent have a significant connection with North Carolina other than mere physical presence; and
- substantial evidence is available in North Carolina concerning the child’s care, protection, training, and personal relationships;
then, North Carolina may be able to assume jurisdiction to enter an original order or modify an order that was entered by another state if the court of the other state determines: (a) it no longer has exclusive, continuing jurisdiction or (b) that North Carolina would be a more convenient forum.
What Happens When Neither Parent Lives in A State Issuing a Custody Order
Now, assume the mother moved to Indiana. Father is in North Carolina and the Order is from New York. Now if North Carolina has initial custody jurisdiction (see above), then, once New York acknowledges that neither parent resides in that state, North Carolina can assume jurisdiction and modify the custody order.
Modification of Foreign Orders in an Emergency
In the event of a true emergency, even if North Carolina cannot assume jurisdiction for a permanent modification, its courts can enter a temporary emergency order that will be effective until the matter of the emergency can be dealt with by the court of the state that does have jurisdiction.
This is a complicated area of the law with many legal complexities which need to be considered in determining which court in which state controls. William G. Whittaker is a partner and family law attorney at Weaver, Bennett & Bland, P.A. Contact William at Weaver, Bennett & Bland, P.A. at (704) 844-1400. The information contained in this article is general in nature and not to be taken as legal advice nor to establish an attorney-client relationship between the reader and William G. Whittaker or the law firm of Weaver, Bennett & Bland, P.A.
Weaver, Bennett & Bland, P.A. serves clients in North Carolina and South Carolina. Located in the town of Matthews between Mecklenburg and Union Counties in North Carolina since 1982, we proudly provide legal services throughout Charlotte, Matthews, Mint Hill, Stallings, Indian Trail, Monroe, Marvin, Wesley Chapel, Weddington, Waxhaw, the Ballantyne area, and other surrounding communities in the Greater Charlotte area.