"How do I Enforce or Modify my Out-of-State Child Custody Order?"
Posted by Hunter & Hein, Attorneys at Law, PLLC. Updated 7/12/17.
Most states, including North Carolina, have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which in part, requires that the courts of our state recognize an out of state custody order (i.e., a “foreign” order) that was entered under substantially similar laws as those which exist in this state. However, there are certain requirements that must be met in order to enforce an out of state custody order in North Carolina; and there are additional requirements that must be met prior to modifying such an order. Our Charlotte based child custody lawyers can help with the process. Please see below for a brief overview of the process and guidelines that must be followed.
First, we’ll address enforcement of an out of state custody order. NCGS 50A-303 outlines North Carolina's "duty to enforce" child custody determinations of another state assuming the issuing state exercised proper jurisdiction when entering the order. In practice, we have also seen judges require that the order be registered and confirmed prior to enforcing an out of state order, although such steps do not seem to be statutorily required. In order to register an out of state order, the registering party must file a Petition of Registration of Foreign Child Custody Order, Notice of Registration, and two certified copies of the original order from the issuing state. Once this filing is done, the registering party must serve the opposing party with all of the filed documents by certified mail with a return receipt requested. When the return receipt comes back, signed by the opposing party, it must be filed along with an Affidavit of Service. The opposing party (non-registering party) has twenty (20) days to answer the Notice of Registration to oppose the confirmation of registration of the foreign custody order. If the opposing party opposes confirmation, there will be a hearing set on the matter. If no answer is filed, the foreign custody order will usually be confirmed, assuming all necessary documentation has been appropriately filed.
Before a NC court will modify a foreign child custody order, the provisions of the UCCJEA must be followed in addition to the possible registration and confirmation steps discussed above. The UCCJEA dictates that a NC court may not modify an out of state custody order unless (1) NC has jurisdiction to make an initial child-custody determination (i.e., NC 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; OR a court of another state does not have home state jurisdiction, OR has declined to exercise jurisdiction on the grounds that NC is the more appropriate forum and the child and parents, or the child and at least one parent, have a significant connection with NC other than mere physical presence, and substantial evidence is available in NC concerning the child’s care, protection, training, and personal relationships) AND either (2) the court of the other state determines it no longer has exclusive, continuing jurisdiction or that a court of NC would be a more convenient forum; OR (2) a court of NC 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. There are also some emergency situations that may allow a NC court to modify an out-of-state on a temporary basis without first meeting all of the criteria above.
Confused? You are not alone. The UCCJEA provisions related to out-of-state custody orders can be difficult to follow, and the process is not an easy one. These types of matters often involve asking two courts in two different states to communicate on certain issues. We are here to help. If you have an out of state child custody order that you want to enforce or modify, and you, your child and/or their other parent lives in North Carolina, contact one of our Charlotte child custody lawyers to discuss how we can help register and confirm the order in NC for enforcement and possible modification. Call today, 704-412-1442.
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