On her demand, my wife and I separated after living in NC for five and a half months. Upon separation, I moved to a neighboring state we had just moved from and left our children in her care temporarily while she and I worked things out. However, two weeks after separating (after establishing the 6 months she needed to file) she filed for child custody, child support, and equitable distribution in North Carolina. We have now been separated for over 14 months while the above litigation has gone on, but at the same time, there was a possibility of reconciliation, which I worked toward. Shortly after we separated, the court awarded her temporary custody because “she lived in NC 6 months prior to filing” and because at the time, she claimed I abandoned her and the children.
Just recently, she has filed for divorce, making reconciliation HIGHLY unlikely. With this recent knowledge, I’m finally looking to move the jurisdiction for the cases over to the state I live in because 1.) We resided in this state for a vast majority of our marriage, 2.) We own property in question in the matter of equitable distribution and 3.) Our children lived in my state for a vast majority of their lives - from birth until five and a half months before separation. Finally, 4.) It is in state I reside that the local court can witness character references to both mine and my wife’s ability to parent our children, which is something that we don’t have in NC, and because of that, the court in NC is making judgements based on claims alone.
Based on the facts listed above, under what NC statute can I file a contest of jurisdiction?
NC is the proper state for the custody action as it is now the home state of the minor children under the UCCJEA since they now live in NC and have so for six months.
You may file a motion to dismiss the ED action in NC as jurisdiction is not proper (Rule 12 b of the North Carolina Rules of Civil Procedure).
As I’m more concerned with contesting the jurisdiction on the matter of custody than I am ED, am I allowed to contest the entire claim (custody, CS, and ED were all filed under one claim) based on Rule 12b(3) for custody and 12b(1) for ED?
Even if my chances of getting jurisdiction moved for ED are lessened by “piggy-backing” custody and CS in the motion to dismiss, is that something that I am within my legal rights to do?
Yes, you may move to have the ED claim dismissed here, but not the custody claim.
Regardless of what the UCCJEA parameters are, can I at least try to move to dismiss the custody claim?
Although I would like for her to, my concern is not whether the judge will agree or not - I just need to know if I’m within legal rights to do so. Even if this attempt proves to be fruitless, I’m looking to use the documentation in my appeal process if the judge decides to award my wife full custody.
On a separate note, if one party lies under oath in court and the judge overlooks it, what options does the opposing party have?
There is no use contesting jurisdiction of the custody claim, it is a waste of time, and you could be sanctioned for filing a motion knowing that you do not have a basis for the same.
If a party lies under oath, they could be prosecuted for perjury, but there is nothing you, the individual can do.
Thanks for all of your help. I sincerely appreciate it.
Where can I find a blank template for filing a motion to dismiss?
There is no template per se, but we do have several sample motions and other documents available as part of our DIY service.