Determining what “state” has jurisdiction when you are dealing with an international or interstate child custody situation can be extremely difficult. Our trial judges in North Carolina want to get their ruling correct, so a careful analysis and reading of the relevant statutes is important.
North Carolina, as well as all of the other United States, has adopted legislation entitled the Uniform Child-Custody Jurisdiction and Enforcement Act, or “UCCJEA” for short. North Carolina’s version of the UCCJEA can be found in Chapter 50A of the North Carolina Statutes.
It is important for you to understand that a “state” under the UCCJEA is defined as “a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.” In addition, a “court of this State shall treat a foreign country as if it were a state of the United States for the purpose” of applying the UCCJEA. So even in situations where your children are taken to live abroad, there are remedies for you under the UCCJEA in North Carolina.
To determine the proper state for a child custody determination, find the child’s “home state”
The first goal for any North Carolina court in deciding whether or not the court can make a decision about custody is to determine whether or not the court has jurisdiction. Without delving too much into the legal nuances of jurisdiction, it is important that any person who wants to ask a North Carolina court to make an initial custody determination in their case understand that North Carolina must have jurisdiction. In other words, the court must have the statutory authority to make a decision about their custody case.
There are four bases upon which a North Carolina Court can assume jurisdiction in a child custody case, which are found in N.C.G.S. § 50A-201(a). These are the only situations in which a North Carolina Court can assume jurisdiction in a child custody case.
The first, and most common way, that a North Carolina court can assume jurisdiction over a child custody action is when North Carolina is the child’s “home state”. Section 50A-102(7) defines a home state as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding.” In other words, if the child has lived in North Carolina with one of their parents for at least six consecutive months immediately before a custody action was filed in North Carolina, than North Carolina may properly assert jurisdiction over the custody case.
Unfortunately, most cases where jurisdictional issues are raised are not this straight-forward. The job of the trial court at that point is to determine whether a home state even exists. Section 50A-201(a)(2) provides the trial court with another option. If the child has not lived in North Carolina with a parent or a person acting as a parent for at least six months immediately preceding the commencement of the action, than the Court can look to whether North Carolina was “the home state of the child within six months before the commencement of the proceeding, and the child is absent from this State but a parent or person acting as a parent continues to live in this State.”
In other words, lets take the all-too common example of where a couple lives in North Carolina with their child. A marital dispute arises and one parent decides to leave and take the child with them. Instead of moving into a new residence here in North Carolina, this parent decides to move back in with his or her parents, who live out-of-state. They continue to reside there for 5 months, at which point the other parent decides that this custody situation won’t work, and files a custody action in North Carolina. Where is the home state in this situation?
Since the child has not lived with the other parent for at least six months in the other state, then that state cannot be properly characterized as the home state. So then the court can look to whether North Carolina was ever the home state of the child, and if so, was it the home state within six months of the commencement of the proceeding? In this situation the answer is clearly yes to both questions – therefore jurisdiction would be proper in North Carolina so long as the other parent continued to live in North Carolina.
Accordingly, the initial analysis for the trial court is to determine where the home state of the minor children is.
What if there is no home state?
It is entirely possible, that there will be no home state for the minor children. This could happen where the children have been moved around from state to state during the past six months, or in situations where the children have been left to live with grandparents who do not qualify as either a parent, or a “person acting as a parent” under the UCCJEA. (A “person acting as a parent” must have “been awarded legal custody by a court or claims a right to legal custody under the law of” the state where they live).
In these situations, the court can look to three other possibilities under which it may assume jurisdiction.
When the home state declines jurisdiction because North Carolina is more appropriate
The first of these three possibilities occurs where the court of another state does not have jurisdiction as the home state, or “a court of the home state of the child has declined to exercise jurisdiction” based on the fact that North Carolina is the more appropriate forum to determine custody. However, in these situations, for the North Carolina Court to exercise jurisdiction, it must also find that “the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with” North Carolina “other than mere physical presence.” In addition, the court must find that “substantial evidence is available in North Carolina concerning the child’s care, protection, training, and personal relationships.”
This prong of the UCCJEA would govern where the child has been in North Carolina for an extended period of time, but not yet the full six months required for a home state determination. There may be another state that is the proper home state, but that state may decline to exercise jurisdiction because North Carolina would be the more convenient location to determine custody.
Going back to our example above, let’s say that the parties lived in Ohio with their child, and that one party left with the child to move to North Carolina. After five months in North Carolina, the other parent files a custody action in Ohio. If Ohio declines to exercise jurisdiction, then the party that moved to North Carolina could ask the North Carolina Court to assume jurisdiction here, so long as there is a “significant connection” to North Carolina and that there is substantial evidence in North Carolina “concerning the child’s care, protection, training, and personal relationships.”
What if North Carolina can’t find jurisdiction here either?
All other states have declined jurisdiction
North Carolina can properly assume jurisdiction where “all courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under G.S. 50A-207 or G.S. 50A-208.”
It is important to briefly discuss what is in sections 50A-207 and 50A-208. Section 207 allows a Court of any state to decline jurisdiction if it finds that state is an “inconvenient forum”. The statute lists 8 factors for the court to consider when making this determination, including:
- Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
- The length of time the child has resided outside this State;
- The distance between the court in this State and the court in the state that would assume jurisdiction;
- The relative financial circumstances of the parties;
- Any agreement of the parties as to which state should assume jurisdiction;
- The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
- The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
- The familiarity of the court of each state with the facts and issues in the pending litigation.
Section 208 governs situations where a North Carolina court may decline jurisdiction because one of the parties has engaged in “unjustifiable conduct”.
The catchall provision
The last of the four prongs under which North Carolina can assume jurisdiction is section 50A-201(a)(4), which states that “No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).” In other words, if no other state is proper to assume jurisdiction, then North Carolina may properly assume jurisdiction over the child custody action.
The UCCJEA is a complex statute. But where applied properly and logically, it works well. The key, as with any legal analysis, is to take the issues slowly, one-by-one.
If you have an interstate or inter national child custody case, we recommend that you contact a lawyer immediately as there are important time constraints in your case. You may reach us at (919) 460-5422 to schedule an initial consultation, or fill out our contact form here.