In re D.A.Y., 266 N.C. App. 33 (2019)

Vacated and Remanded

For dismissal

  • Facts and Timeline:
    • 2013: Final custody order entered in California that awarded custody to father and supervised visits to mother. This order terminated jurisdiction in a juvenile action and transferred custody jurisdiction to family court (similar to N.C.G.S. 7B-911).
    • 2016: father and child moved to Stanly County NC (and remain there) and mother temporarily moved to Nevada.
    • 2018: Mother returned to California. Sometime after her return to California, father initiated in NC a termination of parental rights (TPR) action against mother and alleged California’s jurisdiction terminated when mother relocated to another state (after father and child also left California for NC).  The TPR was granted.
    • Respondent mother appeals arguing the NC district court lacked subject matter jurisdiction under the UCCJEA as NC did not have modification jurisdiction.
  • Standard of review: Subject matter jurisdiction cannot be consented to or waived and can be raised at any time. Whether the court lacked subject matter jurisdiction is a question of law that is reviewed de novo. “To the extent the trial court’s findings of fact refer to the legal effect of actions taken by the parties or the court in California, they are reviewed de novo as conclusions of law.” Sl. Op. 5-6.
  • Modification Jurisdiction: G.S. 50A-203 governs the modification of another state’s child-custody determination and states in part that a NC court may not modify another state’s child-custody determination unless
    • the NC court has jurisdiction to make an initial determination under G.S. 50A-201(a)(1) or (a)(2) [home state or significant connection/substantial evidence] and
      • the other state’s court determines it no longer has exclusive continuing jurisdiction under G.S. 50A-202 or a NC court would be a more convenient forum under G.S. 50A-207 or
      • the NC court or other state’s court determines “the child, the child’s parents, and any other person acting as a parent do not presently reside in the other state.” Sl. Op. 7 (emphasis in opinion).

The first prong was satisfied as NC was the child’s home state; however, neither basis of the second prong was satisfied. The California court did not determine it no longer had exclusive, continuing jurisdiction or that NC would be a more convenient forum. There was no finding by the California or NC court that respondent mother does not presently reside in California; instead, there was a finding by the NC court that the respondent “is a citizen and resident of the State of California.” Sl. Op 9.

  • Relocation to Another State: Although mother relocated to Nevada for two years, she returned to California and was a resident there before and at the time the TPR petition was filed and served. Although the Official Comment to G.S. 50A-202, the statute governing exclusive, continuing jurisdiction, states “Continuing jurisdiction is lost when the child, the child’s parents, and any person acting as a parent no longer reside in the original decree state…. Exclusive continuing jurisdiction is not reestablished if, after the child, the parents, and all persons acting as parents leave the state, the non-custodial parent returns.” Sl. Op. at 10.  Since mother was presently residing in California (the original decree state) when the TPR was commenced, NC’s jurisdiction under G.S. 50A-203 requires a finding by the California court that is not longer has continuing exclusive jurisdiction.
    • Author’s Note: The opinion refers to a finding by the out-of-state court. Case law requires that an order from that out-of-state court must be obtained and included in the NC court record.
Subject Matter Jurisdiction
Modification Jurisdiction
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