Child custody, subject matter jurisdiction/UCCJEA, COA18-240, Feb. 19, 2019, Walz v. Walz, Carteret County
Holding: The trial court erred in finding that North Carolina was the “home state” of the two minor children and in exercising emergency jurisdiction. The trial court lacked subject matter jurisdiction to make the initial child-custody determination.
In May 2015, Husband and Wife enter into a Separation Agreement (“SAPS”), which gave Wife primary custody of the minor children. The SAPS included a provision that NC would have jurisdiction over matters contained in the agreement. In June/July 2015, Wife moved to Arizona with the minor children.
On April 20, 2016 Husband filed a Complaint in Carteret County District Court for child custody and to set aside the SAPS.
On June 16, 2016, Wife filed a Petition for Dissolution of a non-covenant marriage in Arizona. The Arizona court dismissed Wife’s Petition with prejudice because the parties’ SAPS stated that NC will have jurisdiction over the parties’ SAPS.
On July 11, 2017, the Carteret County District Court set aside the SAPS. On September 21, 2017, the Carteret County District Court awarded Husband custody of the minor children.
The trial court improperly applied the UCCJEA when determining subject matter jurisdiction over the minor children. The court must make findings regarding section 50A-201(a) before it can make an initial custody determination. Section 50A-201(a)(1) requires that NC be the home state of the children on the date the action was commenced or within the 6 months before commencement of the action. In this case, the children were absent from NC at least 10 months prior to the action. Arizona was the home state of the minor children, not NC.
Sections 50A-201(a)(2) & (3) do not apply because Arizona did not specifically decline jurisdiction when it determined that NC had jurisdiction over the parties’ SAPS. Section 50A-201(4) does not apply because both parties admitted Arizona was the home state.
Emergency jurisdiction cannot be used to make an initial custody determination because the children were not present in NC when the Complaint was filed and there was no evidence that the children have been abandoned nor it is necessary to invoke emergency jurisdiction to protect the children from mistreatment or abuse.