When parents file a custody lawsuit, their first allegations must relate to why and how the state where they filed the case has jurisdiction to hear the matter. When it comes to minor children, a state must have jurisdiction over the child or children in question. For a state to have jurisdiction over a child, it must be the state of the child’s residency. For children, this state with residency is called the child’s home state.
In North Carolina, “home state” means the state where a child lived with a parent or a person acting as a parent for at least six consecutive months before the start of the child custody proceeding. If the child is less than six months old, the home state is the state where the child has lived from birth with a parent or someone acting as a parent. Temporary absences from the state do not affect the six-month period.
How the “Home State” Rule Affects Custody
Let’s look at a new example to see this in action. Allen and Cindy have lived in New York City for five years. Their two sons were both born in New York. Originally, both Allen and Cindy are from eastern North Carolina. Cindy never wanted to leave North Carolina. They only came to New York for Allen’s job. Sadly, they have now decided to separate. Cindy wants to move back to North Carolina right away. Allen could see the children when he comes to visit his own family. Since both Allen and Cindy are from North Carolina, a North Carolina court would decide child custody, right? Wrong.
Allen and Cindy may originally be from North Carolina, but their children aren’t. Their children are citizens and residents of New York. Allen and Cindy are also citizens and residents of New York, even though they were born in North Carolina. They have lived in New York long enough for their residency to have changed.
Why Must Custody for Allen and Cindy’s Children Be Decided in New York?
Remember that Allen and Cindy’s children have lived in New York their entire lives. Therefore, New York, not North Carolina, is their “home state.” A New York court will decide their custody case. That means that Cindy cannot file a child custody action in North Carolina. If she did, Allen could ask the court to dismiss the action because North Carolina lacks jurisdiction over the children.
This residency requirement exists to prevent parents from “forum shopping.” Forum shopping refers to parents attempting to pick a state that they think may look more favorably on their custody matter. In Cindy’s case, North Carolina courts are more convenient for her since she’s moving there.
As with all matters of the law, there is a caveat. If the case involves domestic violence, Cindy may be able to go to court in North Carolina and gain a temporary custody order. However, the North Carolina court would still almost certainly require Cindy to return to New York to fully resolve custody.
Domestic violence requires a different approach in all situations related to custody matters. Different rules often apply, at least temporarily, to protect the abused parent. These rules are intended to keep everyone safe until the custody matter can be fully heard by the court that has jurisdiction.
What Would Happen If Cindy Moved With the Children and No Child Custody Action Were Filed in New York?
If Allen does not consent to Cindy moving back to North Carolina and taking the kids, he should file a custody action in New York to have the children returned there, where a New York court would resolve their custody.
What if it’s clear that Cindy is trying to avoid the jurisdiction of the New York courts? Allen could most likely obtain an order requiring Cindy to return with the children to New York immediately or, in the alternative, to return the children to Allen until a custody hearing can be scheduled.
But wouldn’t Cindy be kidnapping the children if she moved them to North Carolina without Allen’s permission? In most cases, the situation would not rise to the level of kidnapping. The North Carolina criminal statute, like most state laws about kidnapping, is very specific on what constitutes this crime. The more likely remedy would be an emergency custody order.
Can North Carolina Relinquish or Transfer Jurisdiction to Another State After Deciding Custody?
North Carolina law establishes two circumstances where a court of another state could obtain jurisdiction after a North Carolina court issues a custody order. Another state could gain jurisdiction over the child when one of the following is true:
A court of [North Carolina] determines that  the child, the child’s parents, and any other person acting as a parent do not have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child’s care, protection, training and personal relationships; or
A court of this State or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this State.
Confusing? Let’s look at another example. Say that a North Carolina court awards a mother custody of a child and allows her to permanently move out of North Carolina and into another state. The judge may also transfer the order and jurisdiction in the case to the state of the child’s new residence.
What if a North Carolina court enters a custody order but then both parents and their children move to another state? They could register the custody order in that state. This process grants the new state jurisdiction to hear and enforce any disputes concerning custody. Going forward, the new state could decide any new custody issues as if it had made the original custody determination.
What If Cindy Came Here From Another Country and Wanted to Move Back There?
If Cindy took the children to another country without Allen’s permission, intending to avoid jurisdiction in the United States, she could be committing an international child abduction. That’s a very serious offense.
What the Hague Convention Says
An international treaty called the Hague Convention on the Civil Aspects of International Child Abduction addresses these specific situations.
Generally speaking, the Hague Convention prevents one parent from wrongfully taking children under the age of 16 from their country of habitual residence and into another country that hasn’t been their habitual residence. The goal of the treaty is to return children to their status quo that existed before the wrongful removal. The courts of the children’s home country should decide the custody dispute.
The treaty doesn’t define habitual residence. It basically means the country of the children’s ordinary or customary residence before the wrongful removal.
Can Allen Recover His Children?
Let’s return to our example with Allen and Cindy. Allen, the parent left behind in the United States without the children, would be called the petitioner, the person who files the case. Allen has the burden of proving that Cindy wrongfully removed the children. As the petitioner, Allen must show three things:
- the children resided habitually or regularly in Allen’s country, the United States, at the time of the removal,
- the removal of the children violated Allen’s custody rights under U.S. law, and
- Allen was exercising those custody rights when Cindy removed the children.
The goals are to avoid having one parent disregard the custodial rights of the other parent and to prevent a parent from seeking refuge in another country that may have more sympathetic laws or courts. Under the Hague Convention, the court that hears the action does not consider the merits of the underlying custody dispute. Instead, it only determines what country should hear those issues. The custody dispute itself is then returned to the appropriate country.
Cindy, as the person who removed the children, is referred to as the respondent. In response to Allen’s allegations that she wrongfully removed the children from their country of habitual residence, Cindy can assert four types of defenses under the Hague Convention. She can argue any of the following:
- There is a major risk of harm to the children if they are returned, or the children would be placed in an intolerable situation if they are returned.
- Return of the children would violate the fundamental principles of the United States relating to human rights and basic freedoms.
- The petitioner did not file the action for the return of the children within one year of the wrongful removal, and now the children are settled in the new country.
- The petitioner, Allen, was not exercising his rights of custody at the time of the removal.
If your child has been wrongfully removed from this country to another country, seek legal advice immediately. You must take action as quickly as possible to preserve your rights.
What Does This Mean for Your Custody Case?
Custody matters must be decided in a state that has jurisdiction. Parents cannot run around the country—or the globe—looking for courts that might be sympathetic to their desires for a custodial arrangement. Talk to an attorney and know your rights so that you can pursue your case in the appropriate forum.