Family & Divorce Law Services

I. STATE LAW - UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA)

Although the intent of the UCCJA and the current UCCJEA was and is to prevent forum shopping and keep the courts focused on the best interest of the child, there are situations which caused many judges to try to find a reason to hear a particular matter. 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.” Potter v. Potter 131 NCApp 1, 7, 505 S.E.2d147(1998). Unfortunately, there are still many judges who disregard the letter of the law because of a jealous guard of judicial power or a misguided belief that only he or she can provide the judicial acumen to hear a particular matter.  For the majority of the bench and bar, the repeal of the UCCJA and replacement with the UCCJEA clarifies the issue of jurisdiction, simplifies the choice of forum and brings the state statute in line with the federal Parental Kidnaping Prevention Act or “PKPA” which allows full faith and credit to initial custody matters based on “significant connection” only when there is no existing home state for the child.
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.

 ©) 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.

Without compliance with the above section, the court is without subject matter jurisdiction to hear a case and any order or judgment made would be void. Subject matter jurisdiction can be raised at any time. In a further effort to stop up the loopholes which cause conflicting jurisdictional basis, this act, like the UCCJA before it, requires the six month “home state” stay to be limited to 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.  This definition eliminates problems which could arise from differing state substantive laws on visitation involving grandparents and others. Interestingly, if there is compliance with 50A-201a, no minimum contacts or service within the state is necessary to confer jurisdiction.  Because the law is jurisdictional only, the substantive custody issues are irrelevant.

The jurisdictional requirements of the UCCJEA have been extended to cases involving termination of parental rights (In re Bean, 1999,  511 S.E.2d 683, 132 N.C.App. 363), adoption, and abuse and neglect matters the entry of temporary nonsecure custody order placing children with county department of social services, (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. ) The UCCJEA allows jurisdiction in an initial custody determination on the basis of significant connection only if the child has no home state.  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. Once original jurisdiction is determined, it is continuing and exclusive unless and until a court of the original state determines that there is no longer a significant connection between the child parent or person acting as parent and the state and substantial evidence is no longer available with the state or none of the parties or child lives in the state.(NCGS 50A-202, 203). A court may decline to exercise jurisdiction if it determines that it is an inconvenient forum and another state is a more convenient forum. Factors to be considered by the court include the existence of domestic violence, length of time the child has resided outside the state, distance between courts, relative financial circumstances, an agreement of the parties as to which state might have jurisdiction, nature and location of evidence, ability of the court to decide matters expeditiously, and the familiarity of the court with the case. (NCGS 50A-207).  Jurisdiction may also be declined due to conduct. Section 50A-209 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. Bhatti v Bhatti 98 NC App493, 391 SE2d 201 (1990).  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 126 NC App 764, 487 SE2d 891 (1998) appeal dismissed 349 NC 356 (1998), Further, the UCCJEA requires that the trial court exercising jurisdiction over child custody matters make specific findings of fact supporting its actions. Jerson v Jerson 68 NCApp 738, 315 SE2d 522 (1984).

The UCCJEA is more than a simple jurisdictional tool.  The act is responsive to problems which arise due to the mobile nature of our society. Parents and children can move, but so can witnesses.  With the rise of different modes of communication and interactions which are other than face to face, there can be many reasons why other states hold relevant information, documents, and witnesses.  The UCCJEA provides valuable tools in collecting, preserving, and presenting evidence. Section 50A-110 provides for communication between courts, 50A-111 allows one to offer testimony and documentary evidence from witnesses located in other states by a wide variety of means, and section 50A-112 allows courts to request an appropriate court in another state to hold a hearing or order certain actions.  These provisions are often overlooked by practitioners and may be met by resistance from some courts.  However, the tools are there to be used and can be implemented easier than would appear at first glance.  For instance, it is possible to take testimony via telephone or e-mail, or even by affidavit. “The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and terms upon which the testimony is taken.” (NCGS 50A-111).

A wise practitioner will know and use the UCCJEA both as a jurisdictional basis and as a means of obtaining evidence.

FAIR PLAY, SUBSTANTIAL JUSTICE, AND NO FORUM SHOPPING:
   Jurisdictional Considerations In Child Custody Cases
   By Victoria Bender and Hope Murphy

I. STATE LAW - UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA)

II   FEDERAL LAW - PARENTAL KIDNAPING AND PREVENT ACT (PKPA)

III  INTERNATIONAL LAW - THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

IV CONCLUSION

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