Typically, during the outset of a separation, a party may consider moving to a new state and want to take his/her child with them to start a new life. That may well be a very bad idea depending on the circumstances. This blog post discusses the UCCJEA, which stands for the Uniform Child Custody Jurisdiction Enforcement Act.
One of the things I love about going to court is the ability to listen to other cases. At the very least I'm usually highly entertained and sometimes I pick up some interesting legal tidbits. Back in October I got the opportunity to learn a little more about the UCCJEA and North Carolina.
WHAT IS UNIFORM CHILD CUSTODY JURISDICTION ENFORCEMENT ACT AND WHY IS IT RELEVANT?
The UCCJEA was enacted to combat parental kidnapping where a parent takes a child to another state to try to legally obtain custody through a new custody proceeding. Most states that have adopted the UCCJEA have tweaked it to some extent. North Carolina's version of the UCCJEA can be found under NCGS chapter 50A. If a parent lives in a state other than the one in which a child or children live or a parent moves with the child(ren) to another state, the UCCJEA will be used to determine which state has jurisdiction to determine custody.
NCGS 50A-201 sets forth the four bases for jurisdiction regarding custody in North Carolina. North Carolina will have jurisdiction in your initial custody action if:
- it is the state in which the child lived for the six months immediately prior to the custody proceeding, i.e. the “home state”, or if the state had been the home state and the child is now absent because he or she has been removed by the individual seeking custody; or
- if it is in the child’s best interest because the child and one or both parents have a “significant connection” with the state and evidence relevant to the child’s present or future care, training, and relationships is available within the state, and a court of another state does not have jurisdiction; or
- if the child is physically present in North Carolina and has been abandoned or an emergency situation exists; or
- if no other state would have jurisdiction under the UCCJEA, or if another state has declined jurisdiction and it is in the child’s best interest for North Carolina to assume jurisdiction.
A quick peek reveals that PA has an almost identical version of the UCCJEA as NC.
WHAT WAS SO INTERESTING IN COURT IN OCTOBER?
So you remembered? Well, as I was waiting patiently to finalize a case that I resolved, I was treated to a well litigated discussion regarding whether or not Pennsylvania or North Carolina would have jurisdiction over an initial custody action of a three year old child.
The relevant facts were that the child was born in PA, but moved to NC within a couple days of being born. The child lived with both parents in NC for all his/her life until they all moved back to PA. After residing in Pennsylvania for 5 months, one parent unilaterally decided to move back to NC with the child and a child custody action was brought by both parents in each state. The child apparently had attended some daycare in NC, had play dates in NC, and would be transitioning to a pre-school in NC. In PA, the child has grandparents, uncles/aunts, and family friends that have been in the area for generations. The parties have been exchanging the child every week after the one parent's unilateral move back to North Carolina. Which state has jurisdiction?
Number 1 under NCGS 50A-201 would not apply as the child only lived in NC for five months prior to the initial custody filing. That brings us to number 2 which is "significant connection" with the state. Remember, the child was born in NC and was brought back after residing in PA for five months. There are other children with which the child has been around since birth and a set daycare has been established here. In Pennsylvania, the child has multiple family members that have lived in that area for generations.
The arguments from both the PA and NC attorneys were sound and logical. The PA attorney pointed out the plethora of family members that have been in PA for many years and the support system that comes with it. His point was that those facts should be enough to be a "significant connection". The NC attorney quickly pointed out that the family does not regularly see the child, nor spend significant time with the child. Therefore, just having family members in PA is not enough to establish a "significant connection". In addition, the NC attorney pointed out that the child was born in NC, has attended daycare here, and has made friends here. The PA and NC judges did not seem to be swayed too much by either argument so it appeared to be a tie regarding significant connection.
Numbers three and four of 50A-201 do not apply to our facts so the attorneys looked elsewhere for guidance. Enter NCGS 50A-208 which is titled "jurisdiction declined by reason of conduct". Pennsylvania has a statute that mirrors this NC statute. Essentially, if a parent has engaged in unjustifiable conduct regarding custody then the court shall decline to exercise jurisdiction.
WAS THERE ANY UNJUSTIFIABLE CONDUCT BY EITHER PARTY?
According to the PA attorney there was. His argument was that the act of unilaterally taking the child out of PA and moving him/her to NC was unjustifiable conduct that should be considered against the parent that moved back to NC.
The NC attorney pointed out that the only reason the parties moved to PA was pursuant to agreement to work on their marriage and be back in one of the parties' home state. The NC attorney further explained that the PA parent back-tracked and failed to put forth any effort to make the marriage work thereby negating the parents' agreement to remain in PA.
WHAT WAS THE CONCLUSION?!?!?!
After both Judges had a closed-door discussion over the phone they decided that there was no home state for jurisdictional purposes. They did agree that there was a significant connection in North Carolina; however, they needed to rule on the NC parent's "insidious behavior" of unilaterally moving the child from PA. Basically, initial jurisdiction for NC, but the NC Judge will have the right to determine whether or not to exercise that jurisdiction because of the NC parent's bad conduct.
*REMEMBER, NOTHING IN THIS BLOG OR BLOG POST ESTABLISHES AN ATTORNEY-CLIENT RELATIONSHIP AND THIS SHOULD NOT BE CONSTRUED TO BE PROVIDING YOU WITH LEGAL ADVICE.