Jurisdiction under UCCJEA without anchoring parent

North Carolina Divorce Law Divorce and Separation Answers
1

At the initial temporary custody hearing, the Plaintiff father claimed he was a resident of North Carolina. The Defendant mother and child had moved (with the Father’s knowledge and consent) to Pennsylvania, and had been in residence in PA for 5 months when the initial complaint for temporary custody was made. At the last court hearing, the Plaintiff clearly stated that he was residing in Florida prior to and at the time of the initial complaint and all time since (to decant himself of perjury), and had no plans to return to NC (maintained domicile only in FL, employed in FL, joined FL National Guard, maintained no property in NC).

There is no question NC was the child’s home state at the initial commencement of custody hearing. However, some key questions are raised by this situation, and I hoped an NC lawyer might be able to shed some light:

  1. Can the court of NC establish initial jurisdiction if neither party (Plaintiff Father and Defendant Mother) are in residence in the State? Both parties clearly had no intention of returning to residence in NC (this was not a temporary absence by either party), as evidenced by written statement and sworn testimony.
  2. If the State of NC could establish initial jurisdiction, how could they maintain exclusive, ongoing jurisdiction if neither party nor child resided in the State? The UCCJEA seems pretty clear cut on this issue, stating in effect exclusive, ongoing jurisdiction is lost when the Court of any state recognizes that neither party or child continues to reside in the State.
  3. If the State of NC lost exclusive, ongoing jurisdiction, does it not also lose the power to modify its own custody order? Isn’t the transition from interlocutory temporary order to final order such a modification?
  4. In the absence of this ongoing jurisdiction, wouldn’t the minor child’s home state change to PA past the six month period? The temporary order was issued in January (at which point the child had been in residence for 6 months in PA), the final order hearing is set for August (a total time of over a year in PA uninterrupted).
  5. All issues in the complaint centered solely around the time period since moving to PA. Thus all significant evidence regarding child’s education, welfare, quality of life, and companionship for the time period referenced exist solely in PA. The Defendant Mother received sole custody of the child in the temporary order, with the Plaintiff father receiving only Skype visitation 2x a week. Thus there were no questions of abuse or neglect which might lend to an emergency custody order.

The above questions should highlight the train of thought leading to the question: How can NC issue a custody order in a case where neither child or parents were or are residents of NC? Any light that could be shed on this, specifically in the light of NC interpretation of the UCCJEA for multi-state jurisdiction would be immensely appreciated. Thank you for your time and assistance with this issue.

2
  1. Yes.
  2. Ongoing, exclusive jurisdiction may have been lost, but the court of this state or another has to make that determination.
  3. Again, jurisdiction may have been lost, but the court can enter orders modifying previous orders until such a time as one of the parties argues that the state is no longer the proper jurisdiction. While the change from a temporary order to a permanent order may technically be a modification, it is not a modification as defined under the statute.
  4. You have to argue that jurisdiction in NC is no longer valid and that it should be moved to the new home state.
  5. Original jurisdiction is determined at the time of filing, and since the child had not resided in PA for more than 6 months at that time, NC had jurisdiction and was able to enter the order even though more than 6 months had passed by that point.