What if a joint custody order is entered in a state where the parents and child once lived, but then the child and parents all move — with the child living in-between mother’s home in State A and father’s home in State B? Which state would have jurisdiction to modify the foreign custody order? Would jurisdiction depend on which state had registered the order first?
The Uniform Child-Custody Jurisdiction and Enforcement Act sets out when a North Carolina court can modify a foreign child custody or child support order. See G.S. § 50A-203. Section 50A-203 specifies that this can only happen if a court of this state would have jurisdiction to make an initial child-custody determination, and a court of the other state determines it no longer has continuing, exclusive jurisdiction under G.S. 50A-202 (the child and no parent lives in that state or have a significant connection to that state) or that another state would be a more convenient forum under G.S. 50A-207, or a North Carolina court or a court of the other state determines that the child, the child’s parents and no person acting as a parent currently reside in the other state.
Is registration required to modify or enforce a foreign custody order? Does registration commence a proceeding? The answer to both questions is ‘no’. Unlike with UIFSA, Chapter 52C (foreign child support orders), the UCCJEA, Chapter 50A, does not require registration of a foreign custody order for modification or enforcement. Cheryl Howell of the N.C. School of Government has made this argument on her blog. Section 50A-305 states that a foreign child-custody order “may” be registered; however, that is an optional procedure. In addition, registration of a foreign order does not confer subject matter jurisdiction or modification jurisdiction; instead, it allows enforcement. Wheeler v. Parsons, 775 S.E.2d 695 (N.C. App. 2015). Therefore, registration in one possible home state does not preclude another possible home state from commencing an action. However, if a proceeding has been commenced in another state, a simultaneous proceeding is prohibited. See G.S. § 50A-206. Commencement of a proceeding means the filing of a first pleading in a proceeding. G.S. § 50A-102(5).
In sum, to modify a foreign child-custody order, a party should file a Complaint alluding to the foreign order, attaching a certified copy of it, and alleging a substantial change of circumstances. Upon determining that North Carolina has modification jurisdiction as outlined above, a North Carolina court may proceed to determine whether or not a showing of changed circumstances has been made and enter a new custody order which modifies or supersedes the foreign order. See § 50-13.7(b). If more than one state could have modification jurisdiction (for instance in the situation where two parents are exercising joint custody of a child in different states), the factors a court might look at to determine priority include where the child goes to school, where the child spends most of his or her time.