North Carolina’s Uniform Child Custody Jurisdiction and Enforcement Act requires that any party, any parent whose parental rights have not been terminated, and any person who has physical custody of the child must receive reasonable notice and opportunity to be heard before the court can make a non-emergency award of custody. Motions for custody in an already pending action may be made on ten days’ notice to other parties.
However, the full ten days’ notice of the hearing to review an ex parte temporary custody order need not be given. The district court’s jurisdiction over custody continues from the time it obtains jurisdiction over a child until jurisdiction is terminated by the court or the minor reaches eighteen or becomes otherwise emancipated.
Once the court steps in and assumes jurisdiction over child custody, the parties may lose their previous freedom to contract as they please with regard to custody issues. Thus, if the parties wish to effect an agreement, they may only do so through a consent order rather than a contract so long as litigation is pending. If they wished to put their agreement only into a contract, the litigation should be voluntarily dismissed. Like decrees as to future child support payments, custody decrees are always capable of being modified and thus do not meet the finality requirement for full faith and credit.
To combat parental kidnapping done in an effort to attain a new custody decree in another state, North Carolina has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The UCCJEA is an attempt to bring to the nation a set of standardized jurisdiction and enforcement rules; and a version of this Act has been adopted in every state.
However, it is wise to compare the Act as adopted in another state, if it is relevant to your case, to determine if there are idiosyncratic modifications of the act by that particular legislature. The UCCJEA provides four bases for jurisdiction over child custody matters.
This state has jurisdiction:
- 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.
Certain limits on jurisdiction also exist. The court must refuse jurisdiction if there was a pending custody action in another state when the petition was filed in North Carolina, so long as the other state’s exercise of jurisdiction conforms to UCCJEA requirements.
Declining jurisdiction is also appropriate if the petitioner has violated another state’s custody decree unless the child’s best interests require that the North Carolina court take jurisdiction despite this violation. The North Carolina court also has the discretion to decide to refuse jurisdiction if the petitioner in an initial action has taken the child from another state wrongfully or North Carolina is an inconvenient forum for the action.
With regard to the issue of modification of an existing custody decree, a court with jurisdiction may not modify the decree of another state unless the latter has lost jurisdiction or has refused to exercise it.