Child-custody jurisdiction: home state, exclusive continuing jurisdiction, emergencies, and enforcement across states

Black-letter propositions

1. 01

   Under North Carolina's enactment of the Uniform Child Custody Jurisdiction and Enforcement Act, a court has jurisdiction to make an initial child-custody determination only if one of the statutory bases is met, and that basis is the exclusive jurisdictional basis; physical presence of, or personal jurisdiction over, a party or child is neither necessary nor sufficient.

2. 02

   The state that is the child's home state on the date the proceeding begins, or was the home state within six months before and a parent or person acting as a parent continues to live there, has home-state jurisdiction.

3. 03

   The home state is the state in which the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the proceeding begins, or for a child under six months old, the state where the child lived from birth, and temporary absences count as part of the period.

4. 04

   A state may make an initial determination on the basis of significant connection when no other state has home-state jurisdiction or the home state has declined jurisdiction as an inconvenient forum, and the child and at least one parent have a significant connection with the state other than mere physical presence and substantial evidence is available there.

5. 05

   A court that has made a child-custody determination consistent with the Act has exclusive, continuing jurisdiction until a court determines that the child, the child's parents and any person acting as a parent no longer have a significant connection with the state and substantial evidence is no longer available there, or until a court determines that the child, the parents and any person acting as a parent no longer reside in the state.

6. 06

   A court of another state may not modify a custody determination unless it has jurisdiction to make an initial determination and the first state determines it no longer has exclusive, continuing jurisdiction or that a court of the second state would be a more convenient forum, or a court determines that the child, parents and persons acting as parents do not presently reside in the first state.

7. 07

   A court has temporary emergency jurisdiction if the child is present in the state and has been abandoned, or an emergency requires protecting the child because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse.

8. 08

   If there is a prior custody determination entitled to enforcement or a proceeding has begun in a state with jurisdiction, an emergency order must specify a period adequate to allow the person seeking the order to obtain an order from the state with jurisdiction.

9. 09

   A court with jurisdiction may decline to exercise it at any time if it is an inconvenient forum and a court of another state is more appropriate, considering factors that include domestic violence, how long the child has lived outside the state, the distance between courts, the parties' finances, any agreement of the parties, the location of evidence, and each court's ability to decide expeditiously and familiarity with the case.

10. 10

    A court may not exercise jurisdiction if, at the time the proceeding begins, a custody proceeding has been commenced in another state having jurisdiction substantially in conformity with the Act, unless that proceeding has ended or been stayed because the first court is a more convenient forum.

11. 11

    If a court has jurisdiction because a person seeking to invoke it engaged in unjustifiable conduct, the court must decline jurisdiction unless the parents acquiesced, a court of the state otherwise having jurisdiction finds this state more appropriate, or no other state would have jurisdiction, and it must assess the necessary and reasonable expenses against the party who sought jurisdiction.

12. 12

    A court must recognize and enforce a child-custody determination of another state if that court exercised jurisdiction in substantial conformity with the Act and the determination has not been modified in accordance with the Act, and under the federal Parental Kidnapping Prevention Act the authorities of every state must enforce according to its terms, and may not modify except as provided, a custody determination made consistently with that statute.

Use this attack sequence under time

Common wrong turns

• Physical presence of the child in a state does not by itself give it jurisdiction to decide custody.
• A state that made the first order keeps exclusive, continuing jurisdiction even after the child moves, as long as a parent still lives there.
• An emergency order is temporary and is a bridge to the state with jurisdiction.

Worked example

A child lived with her mother in Ohio for two years. In June the mother moves with the child to Texas and files a custody petition in Texas in July. The father still lives in Ohio.

Practice this topic

Initial jurisdiction

Section 50A-201 of the North Carolina General Statutes, which enacts the Uniform Child Custody Jurisdiction and Enforcement Act, provides that a court has jurisdiction to make an initial child-custody determination only if the state is the child's home state on the date the proceeding begins or was the home state within six months before and a parent or person acting as a parent continues to live there, or if no state has home-state jurisdiction or the home state declined and the child and at least one parent have a significant connection with the state other than mere presence and substantial evidence is available there, or if all courts with jurisdiction have declined, or if no other state has jurisdiction.

Section 50A-201(b) and (c) provide that these are the exclusive bases for making a child-custody determination and that physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient. Section 50A-102(7) defines home state as the state where the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the proceeding began, or for a child less than six months old, from birth, with temporary absences counting as part of the period.

Continuing jurisdiction, modification, and emergencies

Section 50A-202 gives a court that has made a determination consistent with the Act exclusive, continuing jurisdiction until a court finds the child, the parents and any person acting as a parent no longer have a significant connection with the state and substantial evidence is no longer available there, or a court finds that they no longer reside there. Section 50A-203 prevents a court of another state from modifying the determination unless it has initial jurisdiction and the first state has lost or declined continuing jurisdiction or all the relevant persons have left the first state.

Section 50A-204 gives temporary emergency jurisdiction where the child is present in the state and has been abandoned or needs emergency protection from mistreatment or abuse, and requires the order to specify a period adequate to allow the person to obtain an order from the state with jurisdiction if there is a prior determination or a pending proceeding in such a state.

Forum, conduct, and enforcement

Section 50A-206 bars a court from exercising jurisdiction if a custody proceeding has been commenced in another state having jurisdiction substantially in conformity with the Act, unless it has ended or the other court stayed it because the first court is more convenient, and section 50A-207 allows a court to decline jurisdiction as an inconvenient forum after considering listed factors. Section 50A-208 requires a court to decline jurisdiction obtained through unjustifiable conduct, with limited exceptions, and to assess expenses against the party who invoked jurisdiction.

Section 50A-303 requires a court to enforce another state's determination if it was made in substantial conformity with the Act and has not been modified in accordance with the Act, and 28 U.S.C. section 1738A(a) provides that the authorities of every state must enforce according to its terms, and may not modify except as the section provides, any custody determination made consistently with that section by a court of another state. Section 1738A(c) makes a determination consistent with the section only if the court had jurisdiction under its state's law and one of the listed conditions, such as home state jurisdiction, is met.

Frequently asked questions