"Does North Carolina Have Jurisdiction in my Child Custody Case?"
Written by Bill Hunter, Hunter & Hein, Attorneys at Law, PLLC, updated 03/24/2018
Simply put, jurisdiction refers to the power or authority of a court to rule over a particular matter or person. Jurisdiction may become a major issue in child custody cases involving multiple states, as a decision must be made regarding which state should have the power to make a ruling. The following blog written by one of our Charlotte, NC based child custody lawyers is meant to be a very broad overview of a complex subject, and should not be relied on as legal advice. We strongly encourage anyone involved in a child custody dispute to contact an attorney licensed in your jurisdiction.
Our child custody lawyers are available to help with those seeking assistance with matters in Mecklenburg and Cabarrus counties in North Carolina.
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N.C.G.S. §50A-203 speaks to modifying an existing child custody order, and basically says that a NC court cannot modify a valid child custody order from another state unless NC has jurisdiction to make an initial determination of custody (as discussed in the section above) AND either (1) the court in the original state determines it no longer has continuing exclusive jurisdiction over the matter or that a court in NC would be a more convenient forum, OR (2) a NC court or court of the issuing state determines that the child, the child’s parents, and any person acting as a parent no longer live in the issuing state.
By way of example, if State A makes an initial child custody determination, and then one parent and the children move to State B, State B will NOT have the jurisdiction to modify the child custody order from State A so long as the other parent remains in State A….UNLESS a court in State A finds that State B is the more convenient forum and relinquishes jurisdiction.
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Jurisdiction can become a bit of a sticky situation when multiple states are involved in a dispute. When child custody is involved, these interstate scenarios are governed by the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), which has been adopted in some form by almost every state in the United States. The purpose of the UCCJEA is to provide a standard across states regarding jurisdictional and enforcement issues that may arise in a child custody dispute, as dealing with 50 different and conflicting laws in child custody matters from state to state would be unmanageable. In North Carolina, N.C.G.S. Chapter 50A covers the UCCJEA. The rules govern a number of different interstate child custody issues, but this blog will be limited to a brief overview of jurisdictional considerations in initial child custody determinations, in modifications of existing child custody orders, and in emergency situations.
N.C.G.S. §50A-204 addresses emergency situations, and essentially says that a NC court may exercise temporary emergency jurisdiction in extreme situations involving child custody, even if that court doesn’t otherwise have the jurisdiction to enter an order. The statute provides that such emergency jurisdiction may be asserted when a child is present in NC and has been abandoned, or is need of protection due to the child, a sibling of the child, or a parent of the child being subjected to or threatened with mistreatment or abuse.
The duration of a temporary emergency order depends on a number of factors, including whether or not another state has already issued a child custody determination in the matter. If there is an existing child custody order in another state, the temporary emergency order will only remain in force until the original issuing state issues a new order. If there is no existing order in another state, the temporary emergency order may eventually become a final determination and order if the order provides for such relief, and the state issuing the temporary order becomes the home state of the child.
Our Charlotte child custody lawyers are well-versed in the jurisdictional laws surrounding interstate child custody matters and are available to help in Mecklenburg and Cabarrus counties in North Carolina, including the cities of Charlotte, Huntersville, Concord, Harrisburg, Mooresville, Matthews, and Mint Hill. Located in the greater Charlotte / Concord area and have questions? Call us at 704-412-1442 to speak with one of our custody attorneys….OR, complete the contact form on this page and an attorney will contact you shortly.
When there is no current child custody order in place between the disputing parties, a court must make an “initial” child custody determination. If parties live in two different states at the time the dispute arises, the question becomes “which state should have jurisdiction to make the initial custody determination?” N.C.G.S. §50A-201 addresses these scenarios and dictates that the “home state” of the child shall be the state having jurisdiction over such disputes. “Home state” is defined by N.C.G.S. §50A-102(7), and basically refers to the state in which a child lived for at least six consecutive months immediately before a child custody action is brought (or if the child is less than six months of age, then the state in which the child has lived from birth).
By way of example, assume there is not a child custody order in place, the parties and their children have lived in Maryland for last two years, and one party then moves to North Carolina with the children. In this scenario, NC will be unable to assert jurisdiction over the case for an initial child custody determination until the children have resided in NC for at least six months. Maryland will continue to have jurisdiction for an initial determination (even though the children and one parent are no longer present in the state) for six months, so long as one party continues to live in the state of Maryland.
The home state rule will almost always determine jurisdiction in initial determinations except in rare situations such as when one state declines to exercise home state jurisdiction and finds that the other state is a more convenient forum, that the child and the child’s parents or a parent live in the other state, and that there is significant evidence in the other state regarding the child’s care, protection, training, and personal relationships.