Did you and your ex live in North Carolina in the past and now one of you has moved to another state with the kids?
If Child Custody has never been litigated the new State where the kids actually live will likely have jurisdiction after six months. If Custody was litigated in North Carolina, the state usually retains jurisdiction. However, It’s possible to move jurisdiction of your child custody case to another state in these situations. But, it’s entirely in the discretion of your judge.
The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) Controls
The UCCJEA (codified in Chapter 50A of the North Carolina General Statues) controls the issue of child custody jurisdiction. Under the UCCJEA, a state which has jurisdiction (often the “home state” of the child defined as the state where the child has lived for the past six months) at the time of the entry of a court order on child custody retains exclusive continuing jurisdiction for so long as one parent or a child continues to reside in the state. Once everyone leaves the state, North Carolina loses jurisdiction. However, even when North Carolina has continuing exclusive jurisdiction, the state might be an inconvenient forum.
A parent can make a motion to ask a North Carolina Court to declare this state an inconvenient forum. When that is done, the judge considers eight factors:
(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this State;
(3) The distance between the court in this State and the court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.
It’s Not a Change of Venue
Some refer to this as a change of venue but that is not correct. A change of venue occurs within the state but when you are asking North Carolina to relinquish jurisdiction to another state, the applicable law is inconvenient forum.
North Carolina does not place more weight on one factor than the others. Judges consider all of the evidence in relation to these factors and make a decision that North Carolina is or is not an inconvenient forum. If the court concludes it is an inconvenient forum, the custody case moves to the other state and NC relinquishes it’s jurisdiction. If the court concludes it is not an inconvenient forum, North Carolina retains the case.
Because facts change and time can impact the factors, we have sometimes seen a judge deny a request to declare North Carolina an inconvenient forum and years later determine that it now is inconvenient.
Multi-State Child Custody Litigation
Rice Law has experience with all aspects of multi-state child custody litigation under the UCCJEA. We have dealt with this at the trial court and even at the Court of Appeals. We have even litigated international child custody disputes under The Hague Treaty. If we can help you, please give us a call.