Rook v. Rook, ___ N.C. App. ___ (September 19, 2023)
Held:
Reversed and Remanded
- Facts: Mother appeals custody order entered by a North Carolina court for lack of subject matter jurisdiction under the UCCJEA. Child was born in North Carolina in 2002 and resided with mother and father. In 2019, Mother moved out of the home with the child, and Mother and Father entered into a separation agreement that gave Mother legal and physical custody and Father a minimum of bi-monthly accompanied visitation. Later in 2019, Mother filed for custody. In 2020, Mother filed for a domestic violence protection order (DVPO), and an ex parte DVPO was entered. In May 2020, Mother voluntarily dismissed her custody complaint and moved to Utah with the child. In October 2020, five months later, Mother filed a petition for custody in Utah. At the end of November 2020, Father filed a complaint and motion for ex parte temporary custody in North Carolina. The court denied Father’s request for the ex parte temporary custody order and scheduled a hearing on temporary custody in December. Mother filed a motion to dismiss Father’s complaint for lack of subject matter jurisdiction and requested a judicial conference, which she later voluntarily dismissed. In 2021, the North Carolina court entered an order that directed judicial communication with the Utah court, and in February 2021, a consent order on subject matter jurisdiction was entered for the North Carolina court to determine custody of the child. The North Carolina court entered a temporary custody order that incorporated the terms of the separation agreement and granted primary custody of the child to Mother and later ordered Mother to return the child to North Carolina for the duration of the custody trial in North Carolina. In March 2022, a permanent custody order was entered by the North Carolina court that granted joint custody to Mother and Father and awarded Father authority to make final decisions regarding the child if the parents disagreed. Mother was prohibited from taking the child outside of the State except to visit family in Virginia; and Father was instructed to enroll the child in a North Carolina school.
- The standard of review of whether a court possesses subject matter jurisdiction under the UCCJEA is a matter of law reviewed de novo.
- “The jurisdictional requirements of the UCCJEA must be met for a court to have power to adjudicate child custody disputes.” Sl. Op. at 8 (citation omitted). “Subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel.” Sl. Op. at 6 (citation omitted).
- The UCCJEA includes four bases for a trial court to obtain subject matter jurisdiction over an initial custody determination, which include obtaining jurisdiction as a court in the child’s home state or by a court of the home state of the child declining to exercise jurisdiction on the ground that this State is the more appropriate forum. G.S. 50A-201(a)(1), (2).
- “A child’s ‘home state’ is ‘the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the proceeding.’” Sl. Op. at 7 (citing G.S. 50A-102(7)).
- The North Carolina court lacked subject matter jurisdiction to enter the March 2022 custody order. The record does not indicate whether North Carolina possessed subject matter jurisdiction over the custody determination under one of the four grounds under the UCCJEA. The trial court’s findings show Mother moved to Utah with the child in May of 2020, more than six months before father filed his custody complaint. If Utah declined jurisdiction, it was required as the court of the home state to make findings that another state is the more appropriate forum before declining to exercise jurisdiction. See G.S. 50A-207 and 208. The record does not include findings from the Utah court determining that North Carolina is the more appropriate forum and that it was declining to exercise its jurisdiction. The consent order on subject matter jurisdiction is ineffective.
Category:
UCCJEAStage:
Subject Matter JurisdictionTopic:
Home State