In re T.E.N., ___ N.C. App. ___, 798 S.E.2d 792 (2017)

  • Procedural History/Timeline:
    • 2009 child born in New Jersey and lived with parents there
    • 2009 NJ restraining order (mom v  dad) that provided for parenting time/visitation
    • 2011 Final Restraining Order from NJ court granting temporary custody to mom
    • 2012 Amended Final Restraining Order from NJ court granting supervised visits to dad
    • Aug. 2013 mom and child move to NC; dad remains in NJ
    • Oct. 2013, modification of visitation by NJ court
    • Jan. 2015, mom files TPR in NC, which is granted in 2016
  • Modification jurisdiction is governed by GS 50A-203, which requires a two-prong analysis. A North Carolina court may modify an out-of-state custody determination if (i) North Carolina has jurisdiction to make an initial determination under GS 50A-201(a)(1) or (a)(2) and (ii) the court of the other state determines it no longer has exclusive continuing jurisdiction or NC would be a more convenient forum, or the court of the other state or the NC court determines the child, child’s parents, and any person acting as a parent do not presently reside in the other state.
  • In this case, the first condition was met as NC was the child’s home state when the TPR action was commenced, but the second condition required the court of the other state to determine it no longer had exclusive continuing jurisdiction or that NC was a more convenient forum since the respondent father continued to reside in the other state.
  • Citing previous opinions one of which quotes the Official Comment to GS 50A-202, the record must contain an order from the original decree state that indicates it no longer has jurisdiction. See In re K.U.S.G., 208 N.C. App. 128 (2010); In re N.R.M., 165 N.C. App. 294 (2004). Petitioner’s testimony that the NJ court transferred jurisdiction and a finding of fact in the trial court’s TPR order that the NJ court transferred jurisdiction of the custody proceeding to NC is insufficient to establish modification jurisdiction in NC. The NC court never acquired subject matter jurisdiction.
Subject Matter Jurisdiction
Modification Jurisdiction
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