Parental Abduction: Do You Have the Authority to Hear My Case?

I. Introduction

In today’s increasingly mobile society, the proper forum in which to hear a custody matter is not always obvious. Upon the breakup of a marriage, the idea that one party may choose to flee with the children is no longer a remote possibility. The ease at which a disgruntled parent can leave the state or even the country is a source of concern to many parents. In order to prevent child abduction and forum shopping; state, federal, and international laws have been adopted regarding jurisdiction to hear child custody disputes. The interplay between these various laws can cause even the most experienced practitioner to step back in perplexity.

III. State Law

A. THE REPEALED UNIFORM CHILD CUSTODY AND JURISDICTION ACT (UCCJA)1

In the beginning was the UCCJA, or Uniform Child Custody Jurisdiction Act. This act was a first attempt by the states to set jurisdictional guidelines in child custody proceedings where multiple states were involved.2 Its purpose, and the purpose of the present UCCJEA was and is to prevent forum shopping between competing parents to the detriment of the child.3 The statute set forth several criteria under which a state could exercise jurisdiction in a child custody matter. While the statute was an immediate success in helping courts determine jurisdiction, almost immediately, both procedural and substantive problems with the UCCJA became apparent. Procedurally, the UCCJA required a trial court to decline to exercise jurisdiction when it was notified that a custody proceeding was ongoing in another jurisdiction.4 If there was no notification, a subsequent court could proceed with hearing the case pursuant to the UCCJA.
Substantively, there was no hierarchy between the different bases for the court to exercise its jurisdiction. The ‘home state’ basis had the same weight as the ‘significant connection’ basis in the UCCJA.5 A state could exercise jurisdiction if no other state was the home state of a child, or if a child had a significant connection with the subject state. The equality between these two bases resulted in numerous problems between the states. This status, also, conflicted with the Parental Kidnaping Prevention Act (PKPA) and led to conflict between the states. These factors were the driving force for the enactment of the current law, The Uniform Child Custody Jurisdiction and Enforcement Act, known as the UCCJEA.

B. THE PRESENT LAW: UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA)

As indicated above, the equality between the home state basis and the significant connection basis in the UCCJA caused parents to forum shop, thereby preventing the initial goal and purpose of the UCCJA from being obtained. A parent who successfully demonstrated that a child had a significant connection with the “non home” state provided the second state with a means to exercise jurisdiction in a custody case. The significant connection basis for jurisdiction, “turned into a loophole resulting in the furtherance of child snatching by the creation of haven states which might be willing to provide jurisdiction for absconding parents.”6 In addition, the inclusion of these alternate equal means of jurisdiction was in direct conflict with the federal Parental Kidnaping Prevention Act or “PKPA.”

North Carolina General Statutes Chapter 50A-201states

(a) Except as otherwise provided in G.S. 50A-204, a court of this State has jurisdiction to make an initial child-custody determination only if:

(1) This State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under G.S. 50A-207 or G.S. 50A-208, and:

a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and

b. Substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships;

(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under G.S. 50A-207 or G.S. 50A-208; or

(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a child- custody determination by a court of this State.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.

Added by S.L. 1999-223, § 3, eff. Oct. 1, 1999.

COMMENT

This section provides mandatory jurisdictional rules for the original child custody proceeding. It generally continues the provisions of the UCCJA § 3. However, there have been a number of changes to the jurisdictional bases.

1. Home State Jurisdiction. The jurisdiction of the home State has been prioritized over other jurisdictional bases. Section 3 of the UCCJA 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.

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 toenter 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.

HISTORICAL AND STATUTORY NOTES

Uniform Law

This section is based upon § 201 of the Uniform Child Custody Jurisdiction and Enforcement Act (1997). See 9, Part I, Uniform Laws Annotated, Master Edition.

UNITED STATES SUPREME COURT

Jurisdiction

Acquiescence of parent to child’s desire to live with other parent,
jurisdiction of state of resident of other parent in that parent’s action to
establish foreign judgment, see Kulko v. Superior Court of California In and
For City and County of San Francisco, U.S.Cal.1978, 98 S.Ct. 1690, 436
U.S. 84, 56 L.Ed.2d 132, rehearing denied 98 S.Ct. 3127, 438 U.S. 908, 57
L.Ed.2d 1150.
Whether a state court properly assumed jurisdiction under the Uniform Child
Custody Jurisdiction Act is purely a question of state law not properly
subject to review in the , see Webb v. Webb, 1981, 101 S.Ct. 1889, 451
U.S. 493, 68 L.Ed.2d 392.

NOTES OF DECISIONS

  • Authority of court 13
  • Availability of evidence 7
  • Construction of prior law 1
  • Construction with federal law 2
  • Continuing jurisdiction 9
  • Court of another state does not have jurisdiction 6
  • Declining jurisdiction 11
  • Emergency jurisdiction 8
  • Evidence, availability 7
  • Foreign judgments, full faith and credit 12
  • Home state 4
  • Jurisdictional requirements, generally 3
  • Significant connection with state 5
  • Termination of jurisdiction 10
  • Waiver 14

1. Construction of prior law

Under former Uniform Child Custody Jurisdiction Act, North Carolina trial court erred in exercising jurisdiction over petition to modify visitation under previous North Carolina custody order, in light of custody proceeding in another state where child had resided for six years. Lynch v. Lynch, 1989, 386 S.E.2d 607, 96 N.C.App. 601. Divorce 303(1)

North Carolina court had jurisdiction over award of custody in dissolution proceeding, despite former husband’s claim that trial court should not have assumed jurisdiction of child custody suit without first requiring statement to be filed under oath as required by former Uniform Child Custody Jurisdiction Act, which provides that every party in custody proceeding must in first pleading or in affidavit give information under oath as to child’s address and other information; verified complaint alleged that former wife was resident of county and had been resident of county for more than one year, subsequent affidavit showed that North Carolina was child’s home state and former husband also resided in North Carolina. Watson v. Watson, 1989, 377 S.E.2d 809, 93 N.C.App. 315. Divorce 290

Four independent statutory bases for jurisdiction under former Uniform Child Custody Jurisdiction Act emphasized maximum contact with child rather than “residence” or “domicile.” G.S. § 50A-3. Hart v. Hart, 1985, 327 S.E.2d 631, 74 N.C.App. 1. Infants 18

Statutes governing jurisdiction of courts to adjudicate custody proceeding did not apply retroactively to divorce suit filed on April 6, 1978. Lynch v. Lynch, 1981, 274 S.E.2d 212, 302 N.C. 189, rehearing granted 279 S.E.2d 358, 302 N.C. 402, on rehearing 279 S.E.2d 840, 303 N.C. 367. Divorce 4

2. Construction with federal law

Parental Kidnapping Prevention Act creates federal question jurisdiction in lower federal courts to resolve interstate custody disputes whenever conflicting custody decrees have issued in violation thereof and permits federal courts to grant declaratory and injunctive relief on jurisdictional dispute without reassessing merits of any particular state’s custody determination. Meade v. Meade, 1987, 812 F.2d 1473. Federal Courts 8

Traditional limitation on federal diversity jurisdiction in cases involving domestic relations did not apply in action alleging federal question under Parental Kidnapping Prevention Act. Meade v. Meade, 1986, 650 F.Supp. 205, affirmed 812 F.2d 1473. Federal Courts 8

Jurisdiction in “custody proceedings” where multiple states are involved was governed by both the former Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA). In re Bean, 1999, 511 S.E.2d 683, 132 N.C.App. 363. Parent And Child 2(5)

Parental Kidnapping Prevention Act (PKPA) precluded exercise of jurisdiction in foster parents’ action to terminate father’s parental rights, as jurisdiction was retained by Florida court that issued order declaring child dependent and awarding custody of her to foster parents; although foster parents moved to North Carolina with child after Florida court issued that order, father remained Florida resident. In re Bean, 1999, 511 S.E.2d 683, 132 N.C.App. 363. Infants 196

Former Uniform Child Custody Jurisdiction Act (UCCJA) controlled the issue of jurisdiction in child custody cases; however, jurisdiction in child custody matters is simultaneously governed by the federal Parental Kidnapping Prevention Act of 1980 (PKPA). Potter v. Potter, 1998, 505 S.E.2d 147, 131 N.C.App. 1. Parent And Child 2(5)

Parental Kidnapping Prevention Act of 1980 (PKPA) and the former Uniform Child Custody Jurisdiction Act (UCCJA) provide substantially the same jurisdictional prerequisites. Potter v. Potter, 1998, 505 S.E.2d 147, 131 N.C.App. 1. Parent And Child 2(5)

Prerequisites for exercising jurisdiction in substantial conformity with former North Carolina Uniform Child Custody Jurisdiction Act and the federal Parental Kidnapping Prevention Act (PKPA) were essentially the same. Matter of Custody of Bhatti, 1990, 391 S.E.2d 201, 98 N.C.App. 493. Infants 18; Parent And Child 2(5)

3. Jurisdictional requirements, generally

Before exercising jurisdiction over parental rights termination cases, the trial court must consider whether it has jurisdiction to make a child custody order under the former Uniform Child Custody Jurisdiction Act (UCCJA). In re Bean, 1999, 511 S.E.2d 683, 132 N.C.App. 363. Infants 196

The district court may assert its jurisdiction in a parental rights termination case only if to do so would be compatible with the former Uniform Child Custody Jurisdiction Act (UCCJA). In re Bean, 1999, 511 S.E.2d 683, 132 N.C.App. 363. Infants 196

The trial court’s jurisdiction in a termination of parental rights case must be compatible with both the former Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA). In re Bean, 1999, 511 S.E.2d 683, 132 N.C.App. 363. Infants 196

Trial court erroneously concluded it might assume jurisdiction over initial custody determination in divorce case under significant connection alternative set out in former Uniform Child Custody Jurisdiction Act (UCCJA) without first properly determining that children had no home state as defined in Parental Kidnapping Prevention Act of 1980 (PKPA); it was undisputed that court’s formal order denying wife’s motion to dismiss for lack of subject matter jurisdiction contained no such conclusions, and court’s comments issued contemporaneously with its oral ruling could not fairly be characterized as definitely expressing determination that children had no home state. Potter v. Potter, 1998, 505 S.E.2d 147, 131 N.C.App. 1. Divorce 289

Jurisdictional requirements for the former Uniform Child Custody Jurisdiction Act (UCCJA) must be satisfied for district court to have jurisdiction to adjudicate abuse, neglect, and dependency petitions filed pursuant to Juvenile Code. G.S. §§ 7A-558(b), 50A-3. Matter of Van Kooten, 1997, 487 S.E.2d 160, 126 N.C.App. 764, appeal dismissed 502 S.E.2d 618, 347 N.C. 576. Infants 196

District court had subject matter jurisdiction under Juvenile Code to adjudicate children as abused, neglected and dependent and to enter appropriate disposition, where children were present in county at time county department of social services filed its petition alleging that children were abused, neglected and dependent. Matter of Van Kooten, 1997, 487 S.E.2d 160, 126 N.C.App. 764, appeal dismissed 502 S.E.2d 618, 347 N.C. 576. Infants 196

District court had subject matter jurisdiction under former Uniform Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act (PKPA) to enter temporary nonsecure custody order placing children with county department of social services, although children resided in Iowa with their father and were only visiting their mother in North Carolina; both children were present in North Carolina at time order was entered, and there was evidence that children had been sexually or physically abused and were hospitalized in North Carolina as result. Matter of Van Kooten, 1997, 487 S.E.2d 160, 126 N.C.App. 764, appeal dismissed 502 S.E.2d 618, 347 N.C. 576. Infants 196

Although trial court had subject matter jurisdiction under former Uniform Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act (PKPA) to issue nonsecure order, court did not have jurisdiction to adjudicate children as abused, neglected and dependent and enter dispositional order placing them with county department of social services based on evidence that they had been abused by their father in Iowa, where Iowa was children’s home state, and trial court did not find that Iowa had refused to assume jurisdiction to address issues of abuse, neglect and dependency. Matter of Van Kooten, 1997, 487 S.E.2d 160, 126 N.C.App. 764, appeal dismissed 502 S.E.2d 618, 347 N.C. 576. Infants 196

Personal jurisdiction over nonresident husband was not necessary for trial court to have jurisdiction under former Uniform Child Custody Jurisdiction Act (UCCJA) to award wife custody of child who made her home in state. Shingledecker v. Shingledecker, 1991, 407 S.E.2d 589, 103 N.C.App. 783. Divorce 289

4. Home state

Trial court may assume significant connection jurisdiction under Uniform Child Custody Jurisdiction Act (UCCJA) in initial child custody matter only upon proper determination by court that child has no home state as defined in Parental Kidnapping Prevention Act of 1980 (PKPA) at time custody action pending before court was commenced. Potter v. Potter, 1998, 505 S.E.2d 147, 131 N.C.App. 1. Parent And Child 2(5)

Indiana court, which granted mother custody of child living in Indiana, did not assume jurisdiction over custody determination in substantial conformity with former Uniform Child Custody Jurisdiction Act (UCCJA), and so North Carolina courts were not bound to enforce Indiana orders, where Indiana court failed to make finding of fact that Indiana was child’s home state, or that Indiana had been her home state within six months before custody action was commenced, or that it was in child’s best interests for Indiana to assume jurisdiction because she had significant connection with that state. Williams v. Williams, 1993, 430 S.E.2d 277, 110 N.C.App. 406, 40 A.L.R.5th 881. Divorce 402(2)

North Carolina court assumed jurisdiction over child custody determination in substantial conformity with former Uniform Child Custody Jurisdiction Act (UCCJA), where court found that child lived in North Carolina her entire life, and so North Carolina was her home state, and that it was in child’s best interests that North Carolina assume jurisdiction over custody determination. Williams v. Williams, 1993, 430 S.E.2d 277, 110 N.C.App. 406, 40 A.L.R.5th 881. Divorce 402(8)

Finding that state was child’s home state when wife commenced petition for divorce and sought custody was sufficient to give trial court jurisdiction under Uniform Child Custody Jurisdiction Act (UCCJA). Shingledecker v. Shingledecker, 1991, 407 S.E.2d 589, 103 N.C.App. 783. Divorce 289

Evidence supported finding that North Carolina was “home state” of children whose postdivorce custody was at issue, although both parents had resided in Georgia at time of divorce and during part of the six months prior to filing of action regarding custody, children had lived in Georgia with father pursuant to Georgia temporary custody decree; mother had been granted permanent custody of children by divorce decree, she had moved with children to North Carolina, and she had resided in North Carolina for the entire six months. Pheasant v. McKibben, 1990, 396 S.E.2d 333, 100 N.C.App. 379, review denied 402 S.E.2d 417, 328 N.C. 92. Divorce 413.1

Georgia was home state of children, and trial court properly dismissed father’s action and enforced Georgia custody award, where father removed himself and children from their home in Georgia without mother’s knowledge or consent and mother commenced action in Georgia for divorce and custody shortly thereafter. Matter of Custody of Bhatti, 1990, 391 S.E.2d 201, 98 N.C.App. 493. Divorce 402(2)

Trial court had no basis for assuming jurisdiction over father’s petition for custody of children, in view of determination that Georgia was their home state, and where information regarding location of children, any connections they had with North Carolina, and any reasons why North Carolina should be considered their home state were indefinite and unsubstantiated, and sole witness for father testified that he had not seen father or children since he drove them from Georgia to North Carolina. Matter of Custody of Bhatti, 1990, 391 S.E.2d 201, 98 N.C.App. 493. Divorce 402(2)

State properly assumes jurisdiction as home state, under the former North Carolina Uniform Child Custody Jurisdiction Act and the federal Parental Kidnapping Prevention Act (PKPA), if it is home state at commencement of proceeding, or if it had been child’s home state within six months before commencement of proceeding and child is absent from state because of child’s removal or retention by parent claiming child’s custody or for other reasons, and parent or person acting as parent continues to live in state. Matter of Custody of Bhatti, 1990, 391 S.E.2d 201, 98 N.C.App. 493. Infants 18; Parent And Child 2(5)

Temporary absences from Georgia during visits to Pakistan and North Carolina did not interrupt period of time spent in Georgia for purposes of applying home state rule under the former North Carolina Uniform Child Custody Jurisdiction Act and the federal Parental Kidnapping Prevention Act (PKPA). Matter of Custody of Bhatti, 1990, 391 S.E.2d 201, 98 N.C.App. 493. Infants 18; Parent And Child 2(5)

North Carolina was to be considered home state of minor child, for purposes of assertion of subject matter jurisdiction over action seeking child custody, child support, and child support arrearages from Georgia resident under final judgment and decree of Georgia court, where child had resided in state with his mother for five years prior to commencement of action. Shores v. Shores, 1988, 371 S.E.2d 747, 91 N.C.App. 435. Divorce 403(9), 402(8)

Petition filed by county department of social services alleging that minor child had been placed with division of social services 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 interests of the child would be served if the court assumed jurisdiction over the minor child was sufficient to confer jurisdiction on court. Matter of Baby Boy Scearce, 1986, 345 S.E.2d 404, 81 N.C.App. 531, review denied 349 S.E.2d 589, 318 N.C. 415. Infants 197

Father’s allegations that he and his wife were residents of North Carolina for more than six months preceding institution of child custody action, that children had lived in North Carolina with both parents from July 1981 until September 1982, and then with mother until January 1983, and that both children were presently in custody of mother’s parents in Florida satisfied home state requirements for court’s jurisdiction over child custody determination. Hart v. Hart, 1985, 327 S.E.2d 631, 74 N.C.App. 1. Divorce 402(8)

Finding that father was on active duty in United States Marine Corps and was stationed at camp in North Carolina was sufficient to satisfy home state requirement for jurisdiction under former Uniform Child Custody Jurisdiction Act that parent or person acting as parent continue to live in state. Hart v. Hart, 1985, 327 S.E.2d 631, 74 N.C.App. 1. Divorce 402(8)

North Carolina had been children’s home state within six months before commencement of child custody proceeding, so that trial court correctly concluded that it had jurisdiction over child custody determination on home state jurisdictional basis. Hart v. Hart, 1985, 327 S.E.2d 631, 74 N.C.App. 1. Divorce 402(8)

Even though Massachusetts had not enacted Uniform Child Custody Jurisdiction Act, North Carolina court, in determining whether Massachusetts properly exercised jurisdiction over a modification petition, would look to see whether the modification decree was made under factual circumstances meeting the jurisdictional standards of the Act. Nabors v. Farrell, 1981, 280 S.E.2d 763, 53 N.C.App. 345. Divorce 402(8)

5. Significant connection with state

Indiana court failed to assume jurisdiction over custody determination as to child living in North Carolina in substantial conformity with former Uniform Child Custody Jurisdiction Act (UCCJA), since child did not have substantial connections with Indiana, even though child’s mother, stepbrother, and infant sister were living there; only one of child’s relatives in Indiana had seen her, and child had never been to Indiana. Williams v. Williams, 1993, 430 S.E.2d 277, 110 N.C.App. 406, 40 A.L.R.5th 881. Divorce 402(2)

Court properly exercised jurisdiction over custody of three minor children, two of whom had been born in North Carolina, whose parents grew up in North Carolina, whose maternal and paternal grandparents resided in North Carolina, and who moved to North Carolina from Ohio with their mother with the intention of becoming permanent residents, notwithstanding fact that their father filed divorce action in Ohio which was later voluntarily dismissed. Brookshire v. Brookshire, 1988, 365 S.E.2d 307, 89 N.C.App. 48. Courts 514

Trial court’s determination that child and father had significant connection to North Carolina, thus warranting exercise of jurisdiction over custody proceeding by North Carolina court, was supported by evidence, including testimony that mother had not contacted child for 15 months, that strong bond existed between father and child, and that child had lived in North Carolina with father since birth, except for six-month visit to Texas with mother. Brewington v. Serrato, 1985, 336 S.E.2d 444, 77 N.C.App. 726. Parent And Child 2(5)

Evidence, including evidence that father was on active duty with United States Marine Corps and was stationed in camp in North Carolina and that North Carolina had been children’s home state within six months before commencement of custody proceeding was sufficient to conclude that children and at least one parent had sufficient significant connection with North Carolina and that substantial evidence relevant to children’s present or future care, protection, training and personal relationships was available in state; thus, jurisdiction over custody proceeding was proper based on significant connection with state. Hart v. Hart, 1985, 327 S.E.2d 631, 74 N.C.App. 1. Divorce 402(8)

Where minor child had resided with grandparents for almost continuous 15-month period immediately preceding commencement of custody action, and both grandparents who sought custody and child’s father were North Carolina residents, North Carolina court properly exercised jurisdiction over custody action pursuant to former Uniform Child Custody Jurisdiction Act. Plemmons v. Stiles, 1983, 309 S.E.2d 504, 65 N.C.App. 341. Parent And Child 2(5)

Where child had resided in North Carolina approximately one half of two years that had elapsed between her parents’ separation and her abduction, and where child’s mother, who was granted custody under separation agreement, resided in North Carolina, child had significant connection with state authorizing North Carolina court’s jurisdiction under Uniform Child Custody Jurisdiction Act. Latch v. Latch, 1983, 305 S.E.2d 564, 63 N.C.App. 498. Parent And Child 2(5)

Evidence in child custody proceedings that North Carolina had always been children’s home and that wife had, on several occasions, taken children from North Carolina without husband’s consent did not support conclusion that California had jurisdiction over child custody dispute by virtue of wife’s filing of a petition seeking custody of the four children in California after residing there for one month, but would support conclusion that North Carolina had exclusive jurisdiction over custody matter. Davis v. Davis, 1981, 281 S.E.2d 411, 53 N.C.App. 531. Infants 18

6. Court of another state does not have jurisdiction

When North Carolina court is considering jurisdiction in custody proceeding and prior order is pending or has been entered by court of another state, North Carolina court may exercise jurisdiction if it determines that court of other state no longer has jurisdiction and North Carolina has jurisdiction under one of four alternatives listed in G.S. § 50A-3, or court of other state did not exercise jurisdiction in substantial conformity with the Uniform Child Custody Jurisdiction Act and North Carolina has jurisdiction pursuant to § 50A-3. Brewington v. Serrato, 1985, 336 S.E.2d 444, 77 N.C.App. 726. Infants 18

North Carolina court had jurisdiction over child custody proceeding under section of Uniform Child Custody Jurisdiction Act authorizing jurisdiction where it appears that another state has declined to exercise jurisdiction, where in letter to father, Pennsylvania court stated that it was relinquishing jurisdiction to North Carolina court to avoid jurisdictional conflict that would have created difficulties for child, parties and courts. Latch v. Latch, 1983, 305 S.E.2d 564, 63 N.C.App. 498. Parent And Child 2(5)

7. Availability of evidence

Trial court was justified in concluding that forum state rather than foreign state was appropriate forum to resolve child custody dispute; although mother had moved to foreign state and previously had primary custody of parties’ child in that state, parents and child resided in forum state prior to parents’ separation, and witnesses who could testify regarding parents’ qualifications and regarding care given to child while parents and child lived together as family unit were located in forum state. Westneat v. Westneat, 1994, 437 S.E.2d 899, 113 N.C.App. 247. Parent And Child 2(5)

Evidence supported finding that children who were subject of postdivorce custody dispute and mother had significant connection with North Carolina and that there was substantial evidence relevant to children’s present or future care, protection, training, and personal relationships in North Carolina, so as to support subject matter jurisdiction in North Carolina over custody dispute; children had resided in North Carolina with mother, who had been granted permanent custody of children in divorce decree and had moved from Georgia to North Carolina, for all but ten months of the two-year period prior to filing of action regarding custody, and mother had resided in North Carolina during the entire time. Pheasant v. McKibben, 1990, 396 S.E.2d 333, 100 N.C.App. 379, review denied 402 S.E.2d 417, 328 N.C. 92. Divorce 413.1

In view of fact that 11-year-old child had been living with his father in Georgia for six years prior to custody hearing, evidence that he had visited his mother in North Carolina on one occasion during the interval and that the local county department of social services had conducted investigations and prepared reports as to the home life of the mother did not support conclusion that there was available in North Carolina substantial evidence relevant to the child’s past, present, and future care and training and thus did not sustain exercise of jurisdiction by North Carolina court under the former Uniform Child Custody Jurisdiction Act. Holland v. Holland, 1982, 286 S.E.2d 895, 56 N.C.App. 96. Parent And Child 2(5)

8. Emergency jurisdiction

Trial court had emergency jurisdiction to enter temporary custody order, based on juvenile petition seeking protective custody, under former Uniform Child Custody Jurisdiction Act (UCCJA), although custody action had already been filed in state where parents were divorced and custody was awarded, where both the physical and psychological evidence showed that child was sexually abused, and child named father as the person who abused her. Matter of Malone, 1998, 498 S.E.2d 836, 129 N.C.App. 338. Infants 196

Trial court had emergency jurisdiction in child custody dispute despite father’s pending action in Turkey, where children were physically present in state and father had repeatedly abused children and their mother. Tataragasi v. Tataragasi, 1996, 477 S.E.2d 239, 124 N.C.App. 255, review denied 485 S.E.2d 309, 345 N.C. 760. Breach Of The Peace 20

9. Continuing jurisdiction

Virginia circuit court properly exercised continuing jurisdiction under Virginia law over its initial child custody decree, and Parental Kidnapping Prevention Act required North Carolina courts to refrain from also exercising modification jurisdiction where subject child was born in Virginia and lived there most of his life, many of child’s friends and relatives still lived in Virginia, child had spent significant time with his father since mother received custody, and much of evidence regarding child’s present or future care, protection, training, and personal relationships was to be found in Virginia. Meade v. Meade, 1987, 812 F.2d 1473. Divorce 402(8), 402(2)

Where all parties resided in Virginia on date divorce proceedings were commenced, and for at least six months prior to that date, Virginia had jurisdiction to make initial custody award and award was consistent with Parental Kidnapping Prevention Act; although North Carolina had authority to make child custody determination because child had resided continuously with his mother in North Carolina for three and one-half years, North Carolina was obligated to enforce initial Virginia decree without modification or alteration because Virginia court had continuing jurisdiction under its own laws. Meade v. Meade, 1986, 650 F.Supp. 205, affirmed 812 F.2d 1473. Divorce 402(2), 402(1)

Once jurisdiction of the court attaches to a child custody matter, it exists for all time until the cause is fully and completely determined. Matter of Baby Boy Scearce, 1986, 345 S.E.2d 404, 81 N.C.App. 531, review denied 349 S.E.2d 589, 318 N.C. 415. Infants 18

Texas court which had rendered divorce and awarded custody of daughter to mother continued to have jurisdiction of child custody issue where statute provided for continued jurisdiction and Texas court had not refused to hear father’s petition for modification of decree; thus, North Carolina Court was without jurisdiction to modify Texas decree. Naputi v. Naputi, 1984, 313 S.E.2d 179, 67 N.C.App. 351. Divorce 402(8)

Once North Carolina court properly asserts jurisdiction to determine rights of parties to custody of minor child, that court retains jurisdiction to modify its custody decree upon showing of substantial change in circumstances. Lynch v. Lynch, 1981, 279 S.E.2d 840, 303 N.C. 367. Divorce 289

10. Termination of jurisdiction

Where merits of custody action are never reached due to finding that foreign judgment is entitled to full faith and credit, court’s jurisdiction terminates upon final judgment and any action to modify custody filed thereafter must be based on new determination of jurisdiction at the time the action is filed. Lynch v. Lynch, 1981, 279 S.E.2d 840, 303 N.C. 367. Divorce 289

In North Carolina custody proceeding, court’s jurisdiction terminated at entry of judgment awarding full faith and credit to Illinois custody decree, and since husband never entered valid motion seeking modification of custody decree, any such motion which husband might file in the future had to be brought as a new action, establishing jurisdiction anew as of date action was filed. Lynch v. Lynch, 1981, 279 S.E.2d 840, 303 N.C. 367. Divorce 303(3)

11. Declining jurisdiction

It was not error for trial court to decline to exercise its authority under former Uniform Child Custody Jurisdiction Act to assume jurisdiction where court had before it evidence that Michigan was home state of children, that Michigan had closer connection with family of children than did North Carolina, and it was shown that evidence concerning treatment of children by their father, who had custody of children, was more readily available in Michigan than in North Carolina. Pope v. Jacobs, 1981, 276 S.E.2d 487, 51 N.C.App. 374. Courts 514

12. Foreign judgments, full faith and credit

Fact that North Carolina courts asserted jurisdiction over wife to determine whether Illinois judgment was entitled to full faith and credit did not require North Carolina courts to retain jurisdiction over her in the event that husband filed motion seeking new determination of custody on the basis of a substantial change in circumstances. Lynch v. Lynch, 1981, 279 S.E.2d 840, 303 N.C. 367. Divorce 402(8)

In a proceeding to determine whether custody judgment is entitled to full faith and credit, court’s inquiry is first confined to whether judgment sought to be enforced was final judgment rendered by court with competent jurisdiction, and if court determines that foreign judgment was final and rendered by court with proper jurisdiction, then the judgment is entitled to full faith and credit and court never reaches merits of custody action unless one of the parties asserts that the judgment should be modified due to a substantial change in circumstances. Lynch v. Lynch, 1981, 279 S.E.2d 840, 303 N.C. 367. Divorce 402(4), 402(2)

Illinois judgment awarding custody to wife was a final judgment rendered by a court of competent jurisdiction and therefore entitled to full faith and credit. Lynch v. Lynch, 1981, 279 S.E.2d 840, 303 N.C. 367. Divorce 402(4)

13. Authority of court

Having acquired subject matter jurisdiction, the court, guided by the best interests of the child, had broad dispositional powers, including the power to award legal custody of minor child to foster parents. Matter of Baby Boy Scearce, 1986, 345 S.E.2d 404, 81 N.C.App. 531, review denied 349 S.E.2d 589, 318 N.C. 415. Infants 231

Where mother was entitled to custody of child pursuant to Pennsylvania decree, the child was visiting father pursuant to that decree, and one day before child was to be returned to mother, father filed a motion for a change of custody, trial court was without authority to exercise its jurisdiction to modify the Pennsylvania custody order. Bryan v. Bryan, 1984, 311 S.E.2d 313, 66 N.C.App. 461. Parent And Child 2(18)

14. Waiver

Since North Carolina courts had to assert personal jurisdiction over wife in order to grant her request that Illinois judgment be given full faith and credit, wife’s ambiguous motion to dismiss husband’s custody action on ground that North Carolina orders were unconstitutional and were void for lack of personal jurisdiction would be interpreted as motion contesting subject-matter jurisdiction only, and thus, since wife made general appearance by requesting enforcement of Illinois judgment and appearance was entered before motion contesting exercise of personal jurisdiction over wife, wife waived her right to challenge personal jurisdiction and court was authorized to grant her full faith and credit motion. Lynch v. Lynch, 1981, 279 S.E.2d 840, 303 N.C. 367. Divorce 65; Appearance 22

N.C.G.S.A. § 50A-201

NC ST § 50A-201

— END OF DOCUMENT —

The UCCJEA allows jurisdiction in an initial custody determination on the basis of significant connection only if the child has no home state.7 Thus, if a parent is able to demonstrate that a child does, in fact, have a home state, the other parent will not be successful in his or her claim that the second state can assume jurisdiction on the basis that a child has a significant connection with the second state.

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IV. FEDERAL LAW

A.PARENTAL KIDNAPING AND PREVENT ACT (PKPA)8

When the UCCJA was promulgated, each state adopted a different version of the Act. The Parental Kidnaping and Prevention Act (PKPA) was adopted to establish a national policy with regards to custody jurisdiction.9 To the extent a state custody statute conflicts with the PKPA, the federal statute controls.10 Pursuant to the PKPA, a trial court obtains jurisdiction via the four bases of the UCCJA. However, the PKPA adds an additional requirement. The jurisdiction of a state which has made a child custody determination consistently with the PKPA continues as long as: (1) the trial court obtained proper jurisdiction under its own laws, and (2) the state remains the residence of the child or any contestant.11 Therefore, if an initial custody order is entered properly, the PKPA eliminates the possibility of a disgruntled parent obtaining a subsequent custody decision in a different state.

B. PKPA vs. UCCJA

1. Similarities

Many of the provisions of the PKPA are similar to the provisions of the UCCJA. “The PKPA and the UCCJA provide substantially the same jurisdictional prerequisites.”12 “Both permit the state wherein a custody claim is filed to assume jurisdiction if that state is the home state13 of the affected child.”14 And, both the PKPA and the UCCJA require that a second court decline jurisdiction if the first court complied with the provisions of each respective statute.15

2. Differences

Notwithstanding the above similarities between the PKPA and the UCCJA, there are also several differences between the two statues. First, one should note that the desired goal of each statute is different; the UCC JA is a jurisdictional statute, and the PKPA is a full faith and credit statute.16 Thus, while the UCCJA is designed to afford states the opportunity to assume jurisdiction in a custody case, the PKPA is designed to ensure that the judicial decisions of one state are respected by the other states. “The PKPA extends full faith and credit to child custody determinations, including temporary orders, made according to its jurisdictional guidelines.”17

Secondly, “the PKPA’s jurisdictional standards are designed to prohibit the concurrent exercise of jurisdiction by more than one state that sometimes occurs under the UCCJA’s more flexible guidelines.”18

Lastly, “unlike the UCCJA, the PKPA limits assumption of jurisdiction on the basis of significant connection in initial custody determinations to instances in which no state qualifies as the home state.”19 As stated previously, the home state and significant connection bases for jurisdiction are equal alternatives under the UCCJA. In contrast, the PKPA dictates that a trial court decline jurisdiction as per the significant connection basis, if another state is the home state of a child.

C. KEY REQUIREMENTS OF EACH STATUTE

3. 50A-9 requires that every party in a custody pleading must give information under oath regarding the children’s present address, the places where they have lived within the last five years, and the names and present addresses of the persons with whom the children have lived during that period. (In re Bhatti)

4. A district court has authority to enter only temporary protective orders in emergency situations where authority is gained pursuant to the “emergency exception” to the UCCJA and/or PKPA. (In re Van Kooten)

5. The UCCJA requires that the trial court exercising jurisdiction over child custody matters make specific findings of fact supporting its actions. (Williams v. Williams)

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V. INTERNATIONAL LAW

THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

International child custody matters are the most complex of all. The United States has signed the some portions of Hague Convention but not others. While the US is a signatory to “Civil Aspects of International Child Abduction” and to the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters “ it has not signed other portions of the Hague Convention. However, most courts refer to the pieces ofthe conetion which do apply and the “Hague Convention” and it is important to understand which portin of the treaty is being asserted. The Hague Convention promulgates procedures for resolving jurisdictional dilemmas in custody disputes involving more than one country. As with all treaties, it is valid only between those countries which have signed the treaty. Many countries have not signed. In dealing with an international custody dispute the first step is to ascertain if the other country is a signatory to the Hague Convention. The easiest way to make this determination is to either call the State Department, or call your senator or congressional representative and ask the constituent services department for the information.

The Hague Convention was promulgated to promote international cooperation among countries in order to secure the prompt return of children wrongfully taken out of their jurisdictions.20 The Hague Convention was adopted on October 25, 1980.21 On April 28, 1988, the United States implemented the Hague Convention via the enactment of the International Child Abduction Remedies Act.22

Signatories to the Hague Convention, or contracting states23, agree to participate in the return of a child to his or her country of habitual residence when the child is wrongfully removed or retained24 in another country.25 “The underlying principle of the Hague Convention is to secure a swift return of the abducted child to the state in which the child was a habitual resident without undertaking a full investigation of the merits of the abductor’s case.”26 Therefore, it is irrelevant whether or not a child custody determination has been made in a particular case. The role of judicial authorities is simply to “promptly restore the factual situation that existed prior to a child’s removal or retention.”27

One of the goals of the Hague Convention is to avoid assimilation of a child into a strange environment which could lead to subsequent separation difficulties.28 If a child is not returned to the place of habitual residence after he or she has been removed or retained in another country for a year or greater, judicial authorities are only required to return the child if the child has not settled in his or her new environment.29 “If the proceeding was initiated within one year of the child’s abduction, judicial authorities within the Contracting State are required to return the child “forthwith.”30 Thus, it is important that the petitioner, or non-abducting parent, institute proceedings immediately following the child’s abduction from the habitual residence. The child’s departure need not have been unlawful at its inception. A child retained after regularly scheduled or agreed upon visitation or refused to ba allowed to return after a family vacation would be included in the act’s purview.

A contracting state will not be required to return a child to his or her habitual residence in all cases. In addition to the above result after a child has remained in the removal or retained country greater than one year, the Hague Convention recognizes four exceptions to requiring the return of a child to his or her habitual residence.31 When examining the four exceptions to mandatory return of a child to his or her habitual residence, one must also consider the following:

  1. The Hague Convention did not define habitual residence. It is a question of fact, and differs in that respect from domicile.32
  2. Rights of custody include rights relating to the care of the person of the child, and in particular, the right to determine the child’s place of residence.33
  3. Agreements between parties about custody which have legal effect in the state of habitual residence also form a source of custody rights under the Convention.34
  4. When considering whether custody rights are actually exercised, a parent who places a child in another’s care for a short period of time will still be considered to be exercising custodial rights35.
  5. The Hague Convention ceases to apply when a child attains the age of 16 years old.36

Each contracting state must set forth the creation of a Central Authority to facilitate the parental abduction proceeding.37 “The Central Authority is responsible for various receiving and outgoing duties.”38 The incoming request duties include locating an abducted child, instituting proceedings to effect a return, assisting administrative technicalities of a safe return, providing information concerning the laws of a state or background of a child in conjunction with an application, providing legal assistance and counsel, and endeavoring to amicably resolve a kidnaping situation.39 Central Authorities also have responsibilities in outgoing applications, applications seeking the return of children who have been taken to one of the contracting states.40 An application may be submitted either to the Central Authority of the child’s habitual residence, or with the Central Authority of any other contracting state.41 Nevertheless, the use of a Central Authority is optional; a party may bypass these authorities by bringing an action on their own behalf.42

If a child is abducted to a country who is not a signatory to the Hague Abduction Convention, the non-abducting parent can seek legal remedies against the abductor from both the civil and criminal justice systems.43

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1 North Carolina General Statute §50A (1989).
2 In re Bean, 132 N.C. App. 363, 366, 511 S.E. 2d 683, 686 (1999).
3 Id.
4 In re Bean at 366, 511 S.E.2d at 686.
5 Potter v. Potter at 4, 505 S.E.2d at 149.
6 Id. at 7, 505 S.E.2d at 151.
7 Id. at 8, 505 S.E.2d at 151.
8 28 U.S.C. §1738A (1980).
9 In re Bean at 366, 511 S.E.2d at 686.
10 Id.
11 Id.
12 Potter v. Potter at 4, 505 S.E.2d at 149.
13 Home state means the state in which the child immediately preceding the time involved lived with the child’s parents, a parent or a person acting as parent, for at least six consecutive months. In re Bhatti, 98 N.C.App 493, 495, 391 S.E.2d 201, 202 (1990).
14 Potter v. Potter at 4, 505 S.E.2d at 149.
15 The UCCJA provides that, “if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Chapter, a court of this State shall not exercise its jurisdiction under this Chapter, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons. The PKPA provides that, “A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination. In re Bhatti at 494, 391 S.E.2d at 202.
16 Potter v. Potter at 9, 505 S.E.2d at 152.
17 In re Bhatti at 495, 391 S.E.2d at 202.
18 Id.
19 Potter v. Potter. at 5, 505 S.E.2d at 149.
20 Taking Away the Pawns: International Parental Abduction & the Hague Convention, 20 NCJILCR 137, 138 (1994).
21 Id.
22 Id.
23 Addressing International Abduction, Family Law Forum, Volume 21, Number 2, December 2000.
24 A child is wrongfully removed or retained if the non-abducting parent’s custody rights have been actually exercised, either jointly or alone, or would have been so if the removal or retention had not occurred. Taking Away the Pawns, 20 NCJILCR at 149.
25 International Child Abduction, U.S. Department of State Bureau of Consular Affairs, January 1995.
26 Taking Away the Pawns, 20 NCJILCR at 146.
27 Id.
28 Id.
29 Id.
30 Id.
31 A contracting state is not required to return a child to his or her country of habitual residence if:
1) the petitioner had no right of custody or access at the time of the removal or retention;
2) the petitioner acquiesced to the removal or retention;
3) the petitioner failed to exercise his or her right of custody;
4) a “grave risk” of harm to the child would result from the return of the child to the state of habitual residence or the child would be placed “in an intolerable situation”;
5) the child is settled in a new environment;
6) return “would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms;” or
7) the child is of the appropriate age and maturity and objects to the return.
Id.
32 Id. at 152.
33 Id. at 156.
34 Id. at 159.
35 Id. at 160.
36 Id. at 161.
37 Id. at 150.
38 Id.
39 Id.
40 Id.
41 Id.
42 Id. at 151.
43 International Child Abduction at 10.