What is the UCCJEA, Uniform Child Custody Jurisdiction Enforcement Act?

The Uniform Child Custody Jurisdiction and Enforcement Act was put in place and adopted across the United States and North Carolina in 1999 with the goal of avoiding jurisdictional competition with other states. It promotes the cooperation of other states in assuming jurisdiction over child custody cases, assuring that litigation occurs where the child and parties have their closest connection, discouraging relitigation and unilateral removals of children, and facilitating enforcement of North Carolina and sister state decrees.

Under the UCCJEA the primary goal is to establish the “Home State.” The Home State is the state in which a minor child lived with a parent, or an individual acting as a parent, for at least six consecutive months immediately before the commencement of a proceeding. If the minor child is less than 6 months old, the Home State is the State where the minor child has lived since birth. Additionally, in determining whether or not the Home State test is met, temporary absences from North Carolina are disregarded.

Of course, as in all law, there are exceptions to when the Home State Rule does not apply, which can be rather complicated such as when all other states with jurisdiction decline having jurisdiction or when there is not a homes state or a state with significant connections. Furthermore, a party seeking Emergency Custody may override a Home State with Jurisdiction under the right circumstances. Sheehan at (704) 222-4752.

Chapter 50A is the exclusive source of custody jurisdiction in North Carolina

In North Carolina the UCCJEA is codified as Chapter 50A of the General Statutes, and the custody statute defers to it entirely. G.S. 50-13.5(c)(2) provides that “the courts of this State shall have jurisdiction to enter orders providing for the custody of a minor child under the provisions of G.S. 50A-201, 50A-202, and 50A-204.” The Chapter carries both halves of the uniform act: the jurisdictional Part that decides which state may make or change a custody order, and the enforcement Part that decides how an order already made is registered, enforced and, if necessary, backed by a warrant.

G.S. 50A-201(b) closes the point: subsection (a) “is the exclusive jurisdictional basis for making a child-custody determination by a court of this State.” And G.S. 50A-201(c) removes the intuition most people bring to the question — “physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.” A parent can be personally served in Charlotte and the North Carolina court can still lack jurisdiction over custody of the child.

There are four grounds for an initial determination, and they are hierarchical

G.S. 50A-201(a) lists four bases for making an initial child-custody determination. They are read in order, and the later ones only come into play when the earlier ones are unavailable.

• North Carolina is the home state of the child on the date the proceeding commences, or was the home state within six months before commencement and the child is absent from the State but a parent or person acting as a parent continues to live here
• No other state has home state jurisdiction, or the home state has declined on the ground that North Carolina is the more appropriate forum, and the child and at least one parent or person acting as a parent have a significant connection with this State other than mere physical presence, and substantial evidence is available here concerning the child’s care, protection, training and personal relationships
• All courts that would have jurisdiction under the first two grounds have declined to exercise it on the ground that North Carolina is the more appropriate forum
• No court of any other state would have jurisdiction under the criteria in the first three grounds

Home state is defined by where the child lived, not by where the parents are from

G.S. 50A-102(7) defines “home state” as the state in which a child lived with a parent or a person acting as a parent “for at least six consecutive months immediately before the commencement of a child-custody proceeding.” For a child under six months of age, the home state is the state in which the child lived from birth with a parent or a person acting as a parent. A period of temporary absence of any of those persons counts as part of the period, so a holiday, a hospital stay or a summer away does not restart the clock.

The other definitions do real work as well. “Commencement” means “the filing of the first pleading in a proceeding,” which fixes the date against which the six months is measured. A “child-custody determination” is “a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child,” and a “child-custody proceeding” is one “in which legal custody, physical custody, or visitation with respect to a child is an issue.” Those definitions are broad enough to sweep in proceedings that do not carry the word custody in their title.

Once North Carolina makes a determination it keeps exclusive, continuing jurisdiction

G.S. 50A-202(a) gives a North Carolina court that has made a determination consistent with G.S. 50A-201 or 50A-203 exclusive, continuing jurisdiction until one of two things happens: a court of this State determines that neither the child nor the child’s parents nor any person acting as a parent has a significant connection with North Carolina and that substantial evidence is no longer available here concerning the child’s care, protection, training and personal relationships; or a court of this State or 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.

That is why moving away does not, on its own, move the case. The first route requires both halves to fail — the significant connection and the availability of substantial evidence — and the second requires that nobody within the listed group is still resident here. G.S. 50A-202(b) adds the converse: a North Carolina court that has lost exclusive, continuing jurisdiction may modify its own determination only if it would have jurisdiction to make an initial determination under G.S. 50A-201.

Modifying another state’s custody order requires two things at once

Under G.S. 50A-203 a North Carolina court may not modify a child-custody determination made by a court of another state unless it has jurisdiction to make an initial determination under G.S. 50A-201(a)(1) or (2) — the home state ground or the significant-connection ground — and one of two further conditions is satisfied. Either the court of the other state determines that it no longer has exclusive, continuing jurisdiction under G.S. 50A-202 or that a North Carolina court would be a more convenient forum under G.S. 50A-207; or a court of this State or 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.

Once those requirements are met, the substantive standard is the ordinary one. G.S. 50-13.7(b) allows a North Carolina court, subject to G.S. 50A-201, 50A-202 and 50A-204 and upon gaining jurisdiction, to enter on a showing of changed circumstances a new custody order that modifies or supersedes the order of the other state.

Two cases filed at once are resolved by a stay and a conversation between judges

G.S. 50A-206(a) provides that, except in an emergency under G.S. 50A-204, a North Carolina court “may not exercise its jurisdiction under this Part if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this Article,” unless that proceeding has been terminated or stayed because North Carolina is a more convenient forum.

Subsection (b) tells the court how to find out. Before hearing a custody proceeding the court “shall examine the court documents and other information supplied by the parties pursuant to G.S. 50A-209.” If a proceeding is already under way elsewhere, the North Carolina court “shall stay its proceeding and communicate with the court of the other state,” and if that court does not conclude that North Carolina is the more appropriate forum, the North Carolina proceeding is dismissed.

G.S. 50A-209(a) is what makes this workable. A party’s first pleading, or an affidavit attached to it, must state under oath the child’s present address or whereabouts, every place the child has lived during the last five years and the persons the child lived with, whether the party has participated in other custody proceedings concerning the child, whether the party knows of any proceeding that could affect the case — including domestic violence, protective order, termination of parental rights and adoption proceedings — and the names and addresses of anyone not a party who has physical custody of the child or claims rights of custody or visitation. G.S. 50A-209(d) makes that a continuing duty to inform the court of any proceeding in this or any other state that could affect the current one.

G.S. 50A-110 governs the judges’ communication. The parties may be allowed to participate, and if they are not, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made. Communication about schedules, calendars and court records may occur without informing the parties; otherwise a record must be made and the parties informed promptly and granted access to it.

North Carolina can decline jurisdiction it actually has

Under G.S. 50A-207(a) a North Carolina court with jurisdiction “may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum,” and the issue may be raised on motion of a party, on the court’s own motion or at the request of another court. Before declining, the court must consider all relevant factors, including whether domestic violence has occurred and is likely to continue and which state could best protect the parties and the child; the length of time the child has resided outside this State; the distance between the two courts; the relative financial circumstances of the parties; any agreement of the parties about which state should assume jurisdiction; the nature and location of the evidence, including testimony of the child; the ability of each court to decide the issue expeditiously; and each court’s familiarity with the facts and issues.

G.S. 50A-208 deals with the parent who manufactures jurisdiction. Where a North Carolina court has jurisdiction only because of the unjustifiable conduct of the person invoking it, the court must decline unless the parents and any person acting as a parent acquiesce, or a court of the state that would otherwise have jurisdiction determines North Carolina is the more appropriate forum, or no other state would have jurisdiction.

The costs consequence is mandatory rather than discretionary. Where the court dismisses the petition or stays the proceeding on that ground, G.S. 50A-208(c) provides that it shall assess against the party who sought to invoke its jurisdiction necessary and reasonable expenses — including costs, communication expenses, attorneys’ fees, investigative fees, expenses for witnesses, travel expenses and child care during the proceedings — unless the party from whom they are sought establishes that the assessment would be clearly inappropriate. The same subsection bars the court from assessing fees, costs or expenses against the State unless some law other than the Article authorizes it.

Emergency jurisdiction is the exception, and it is meant to be brief

G.S. 50A-204(a) gives a North Carolina court temporary emergency jurisdiction “if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” This is the one basis that operates without regard to home state.

It is bounded on both sides. If a custody determination already exists elsewhere, or a proceeding has been commenced in a state with jurisdiction, the North Carolina order must specify a period the court considers adequate for the applicant to obtain an order from that state, and G.S. 50A-204(d) requires the North Carolina court to communicate immediately with the other court. If there is no prior determination and no proceeding elsewhere, the North Carolina order remains in effect until an order is obtained from a state with jurisdiction, and becomes a final determination only if it says so and North Carolina becomes the child’s home state.

Registering and enforcing an out-of-state order in Mecklenburg County

Part 3 of Article 2 of Chapter 50A is the enforcement half of the Act. Under G.S. 50A-305 a custody determination of another state is registered by sending the court a letter or other document requesting registration, two copies of the determination including one certified copy together with a sworn statement that it has not been modified, and the name and address of the person seeking registration and of any parent or person acting as a parent who has been awarded custody or visitation. The court files it as a foreign judgment and notice is served. A person contesting validity must request a hearing within twenty days after service of notice, on one of three grounds: the issuing court lacked jurisdiction; the determination has been vacated, stayed or modified; or the contesting party was entitled to notice in the original proceedings and did not receive it. Confirmation “precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.”

Enforcement is deliberately quick. G.S. 50A-308(c) requires the hearing on a petition for expedited enforcement to be held “on the next judicial day after service of the order unless that date is impossible,” with the first possible judicial day used instead. On the filing of such a petition the petitioner may apply under G.S. 50A-311 for a warrant to take physical custody of the child; the court may issue one where it finds, on the testimony of the petitioner or another witness, that the child is imminently likely to suffer serious physical harm or be removed from this State, and the warrant is enforceable throughout North Carolina.

Criminal liability sits at the far edge of the same subject. Where a court has awarded custody of a child under the age of sixteen, a person who takes or transports the child out of North Carolina, or keeps the child outside the State, with intent to violate the order commits an offense under G.S. 14-320.1 punishable as a Class I felony, and keeping the child outside the State in violation of the order for more than seventy-two hours is prima facie evidence of that intent at the time of taking.

Common questions

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.

Related questions

• Can I Get Child Custody of My Grandchildren?
• Does the Court Prefer Mothers or Fathers?
• How do I Obtain Emergency Custody in North Carolina?
• What’s the Difference Between Joint Custody and Sole Custody?