|
North Carolina Family Law Statutes
Article 1.
Uniform Child Custody Jurisdiction Act.
§§ 50A-1 through 50A-25: Repealed by Session Laws 1999-223,
s. 1(b), effective October 1, 1999, and applicable to causes of
action arising on or after that date.
Article 2.
Uniform Child-Custody Jurisdiction and Enforcement Act.
Part 1. General Provisions.
§ 50A-101. Short title.
This Article may be cited as the Uniform Child-Custody
Jurisdiction and Enforcement Act. (1979, c. 110, s. 1; 1999-223,
s. 3.)
§ 50A-102. Definitions.
In this Article:
(1) "Abandoned" means left without provision for
reasonable and necessary care or supervision.(2) "Child"
means an individual who has not attained 18 years of age.
(3) "Child-custody determination" means a judgment,
decree, or other order of a court providing for the legal custody,
physical custody, or visitation with respect to a child. The term
includes a permanent, temporary, initial, and modification order.
The term does not include an order relating to child support or
other monetary obligation of an individual.
(4) "Child-custody proceeding" means a proceeding in
which legal custody, physical custody, or visitation with respect
to a child is an issue. The term includes a proceeding for
divorce, separation, neglect, abuse, dependency, guardianship,
paternity, termination of parental rights, and protection from
domestic violence in which the issue may appear. The term does not
include a proceeding involving juvenile delinquency, contractual
emancipation, or enforcement under Part 3 of this Article.
(5) "Commencement" means the filing of the first
pleading in a proceeding.
(6) "Court" means an entity authorized under the law of
a state to establish, enforce, or modify a child-custody
determination.
(7) "Home state" means 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 a
child-custody proceeding. In the case of a child less than six
months of age, the term means the state in which the child lived
from birth with any of the persons mentioned. A period of
temporary absence of any of the mentioned persons is part of the
period.
(8) "Initial determination" means the first
child-custody determination concerning a particular child.
(9) "Issuing court" means the court that makes a
child-custody determination for which enforcement is sought under
this Article.
(10) "Issuing state" means the state in which a
child-custody determination is made.
(11) "Modification" means a child-custody determination
that changes, replaces, supersedes, or is otherwise made after a
previous determination concerning the same child, whether or not
it is made by the court that made the previous determination.
(12) "Person" means an individual, corporation, business
trust, estate, trust, partnership, limited liability company,
association, joint venture, government; governmental subdivision,
agency, or instrumentality; public corporation; or any other legal
or commercial entity.
(13) "Person acting as a parent" means a person, other
than a parent, who:
a. Has physical custody of the child or has had physical custody
for a period of six consecutive months, including any temporary
absence, within one year immediately before the commencement of a
child-custody proceeding; and
b. Has been awarded legal custody by a court or claims a right to
legal custody under the law of this State.
(14) "Physical custody" means the physical care and
supervision of a child.
(15) "State" means a state of the United States, the
District of Columbia, Puerto Rico, the United States Virgin
Islands, or any territory or insular possession subject to the
jurisdiction of the United States.
(16) "Tribe" means an Indian tribe or band, or Alaskan
Native village, which is recognized by federal law or formally
acknowledged by a state.
(17) "Warrant" means an order issued by a court
authorizing law enforcement officers to take physical custody of a
child. (1979, c. 110, s. 1; 1999-223, s. 3.)
§ 50A-103. Proceedings governed by other law.
This Article does not govern an adoption proceeding or a
proceeding pertaining to the authorization of emergency medical
care for a child. (1999-223, s. 3.)
§ 50A-104. Application to Indian tribes.
(a) A child-custody proceeding that pertains to an Indian child,
as defined in the Indian Child Welfare Act, 25 U.S.C. § 1901 et
seq., is not subject to this Article to the extent that it is
governed by the Indian Child Welfare Act.
(b) A court of this State shall treat a tribe as if it were a
state of the United States for the purpose of applying Parts 1 and
2.
(c) A child-custody determination made by a tribe under factual
circumstances in substantial conformity with the jurisdictional
standards of this Article must be recognized and enforced under
Part 3. (1999-223, s. 3.)
§ 50A-105. International application of Article.
(a) A court of this State shall treat a foreign country as if it
were a state of the United States for the purpose of applying
Parts 1 and 2.
(b) Except as otherwise provided in subsection (c), a
child-custody determination made in a foreign country under
factual circumstances in substantial conformity with the
jurisdictional standards of this Article must be recognized and
enforced under Part 3.
(c) A court of this State need not apply this Article if the
child-custody law of a foreign country violates fundamental
principles of human rights. (1979, c. 110, s. 1; 1999-223, s. 3.)
§ 50A-106. Effect of child-custody determination.
A child-custody determination made by a court of this State that
had jurisdiction under this Article binds all persons who have
been served in accordance with the laws of this State or notified
in accordance with G.S. 50A-108 or who have submitted to the
jurisdiction of the court and who have been given an opportunity
to be heard. As to those persons, the determination is conclusive
as to all decided issues of law and fact except to the extent the
determination is modified. (1979, c. 110, s.1; 1999-223, s. 3.)
§ 50A-107. Priority.
If a question of existence or exercise of jurisdiction under this
Article is raised in a child-custody proceeding, the question,
upon request of a party, must be given priority on the calendar
and handled expeditiously. (1999-223, s. 3.)
§ 50A-108. Notice to persons outside State.
(a) Notice required for the exercise of jurisdiction when a person
is outside this State may be given in a manner prescribed by the
law of this State for service of process or by the law of the
state in which the service is made. Notice must be given in a
manner reasonably calculated to give actual notice but may be by
publication if other means are not effective.
(b) Proof of service may be made in the manner prescribed by the
law of this State or by the law of the state in which the service
is made.
(c) Notice is not required for the exercise of jurisdiction with
respect to a person who submits to the jurisdiction of the court.
(1999-223, s. 3.)
§ 50A-109. Appearance and limited immunity.
(a) A party to a child-custody proceeding, including a
modification proceeding, or a petitioner or respondent in a
proceeding to enforce or register a child-custody determination,
is not subject to personal jurisdiction in this State for another
proceeding or purpose solely by reason of having participated, or
of having been physically present for the purpose of
participating, in the proceeding.
(b) A person who is subject to personal jurisdiction in this State
on a basis other than physical presence is not immune from service
of process in this State. A party present in this State who is
subject to the jurisdiction of another state is not immune from
service of process allowable under the laws of that state.
(c) The immunity granted by subsection (a) does not extend to
civil litigation based on acts unrelated to the participation in a
proceeding under this Article committed by an individual while
present in this State. (1999-223, s. 3.)
§ 50A-110. Communication between courts.
(a) A court of this State may communicate with a court in another
state concerning a proceeding arising under this Article.
(b) The court may allow the parties to participate in the
communication. If the parties are not able to participate in the
communication, they must be given the opportunity to present facts
and legal arguments before a decision on jurisdiction is made.
(c) Communication between courts on schedules, calendars, court
records, and similar matters may occur without informing the
parties. A record need not be made of the communication.
(d) Except as otherwise provided in subsection (c), a record must
be made of a communication under this section. The parties must be
informed promptly of the communication and granted access to the
record.
(e) For the purposes of this section, "record" means
information that is inscribed on a tangible medium or that is
stored in an electronic or other medium and is retrievable in
perceivable form. (1999-223, s. 3.)
§ 50A-111. Taking testimony in another state.
(a) In addition to other procedures available to a party, a party
to a child-custody proceeding may offer testimony of witnesses who
are located in another state, including testimony of the parties
and the child, by deposition or other means allowable in this
State for testimony taken in another state. The court on its own
motion may order that the testimony of a person be taken in
another state and may prescribe the manner in which and the terms
upon which the testimony is taken.
(b) A court of this State may permit an individual residing in
another state to be deposed or to testify by telephone,
audiovisual means, or other electronic means before a designated
court or at another location in that state. A court of this State
shall cooperate with courts of other states in designating an
appropriate location for the deposition or testimony.
(c) Documentary evidence transmitted from another state to a court
of this State by technological means that do not produce an
original writing may not be excluded from evidence on an objection
based on the means of transmission. (1979, c. 110, s. 1; 1999-223,
s. 3.)
§ 50A-112. Cooperation between
courts; preservation of records.
(a) A court of this State may request the appropriate court of
another state to:
(1) Hold an evidentiary hearing;
(2) Order a person to produce or give evidence pursuant to
procedures of that state;
(3) Order that an evaluation be made with respect to the custody
of a child involved in a pending proceeding;
(4) Forward to the court of this State a certified copy of the
transcript of the record of the hearing, the evidence otherwise
presented, and any evaluation prepared in compliance with the
request; and
(5) Order a party to a child-custody proceeding or any person
having physical custody of the child to appear in the proceeding
with or without the child.
(b) Upon request of a court of another
state, a court of this State may hold a hearing or enter an order
described in subsection (a).
(c) Travel and other necessary and reasonable expenses incurred
under subsections (a) and (b) may be assessed against the parties
according to the law of this State.
(d) A court of this State shall preserve the pleadings, orders,
decrees, records of hearings, evaluations, and other pertinent
records with respect to a child-custody proceeding until the child
attains 18 years of age. Upon appropriate request by a court or
law enforcement official of another state, the court shall forward
a certified copy of those records. (1979, c. 110, s. 1; 1999-223,
s. 3.)
Part 2. Jurisdiction.
§ 50A-201. Initial child-custody jurisdiction.
(a) Except as otherwise provided in G.S. 50A-204, a court of this
State has jurisdiction to make an initial child-custody
determination only if:
(1) This State is the home state of the
child on the date of the commencement of the proceeding, or was
the home state of the child within six months before the
commencement of the proceeding, and the child is absent from this
State but a parent or person acting as a parent continues to live
in this State;
(2) A court of another state does not have jurisdiction under
subdivision (1), or a court of the home state of the child has
declined to exercise jurisdiction on the ground that this State is
the more appropriate forum under G.S. 50A-207 or G.S. 50A-208,
and:
a. The child and the child's parents,
or the child and at least one parent or a person acting as a
parent, have a significant connection with this State other than
mere physical presence; and
b. Substantial evidence is available in this State concerning the
child's care, protection, training, and personal relationships;
(3) All courts having jurisdiction
under subdivision (1) or (2) have declined to exercise
jurisdiction on the ground that a court of this State is the more
appropriate forum to determine the custody of the child under G.S.
50A-207 or G.S. 50A-208; or
(4) No court of any other state would have jurisdiction under the
criteria specified in subdivision (1), (2), or (3).
(b) Subsection (a) is the exclusive jurisdictional basis for
making a child-custody determination by a court of this State.
(c) Physical presence of, or personal jurisdiction over, a party
or a child is not necessary or sufficient to make a child-custody
determination. (1979, c. 110, s. 1; 1999-223, s. 3.)
§ 50A-202. Exclusive, continuing
jurisdiction.
(a) Except as otherwise provided in G.S. 50A-204, a court of this
State which has made a child-custody determination consistent with
G.S. 50A-201 or G.S. 50A-203 has exclusive, continuing
jurisdiction over the determination until:
(1) A court of this State determines
that neither the child, the child's parents, and any person acting
as a parent do not have a significant connection with this State
and that substantial evidence is no longer available in this State
concerning the child's care, protection, training, and personal
relationships; or
(2) A court of this State or a court of another state determines
that the child, the child's parents, and any person acting as a
parent do not presently reside in this State.
(b) A court of this State which has
made a child-custody determination and does not have exclusive,
continuing jurisdiction under this section may modify that
determination only if it has jurisdiction to make an initial
determination under G.S. 50A-201. (1999-223, s. 3.)
§ 50A-203. Jurisdiction to modify determination.
Except as otherwise provided in G.S. 50A-204, a court of this
State may not modify a child-custody determination made by a court
of another state unless a court of this State has jurisdiction to
make an initial determination under G.S. 50A-201(a)(1) or G.S.
50A-201(a)(2) and:
(1) The court of the other state determines it no longer has
exclusive, continuing jurisdiction under G.S. 50A-202 or that a
court of this State would be a more convenient forum under G.S.
50A-207; or
(2) A court of this State or a court of the other state determines
that the child, the child's parents, and any person acting as a
parent do not presently reside in the other state. (1979, c. 110,
s. 1; 1999-223, s. 3.)
§ 50A-204. Temporary emergency jurisdiction.
(a) A court of this State has temporary emergency jurisdiction if
the child is present in this State and the child has been
abandoned or it is necessary in an emergency to protect the child
because the child, or a sibling or parent of the child, is
subjected to or threatened with mistreatment or abuse.
(b) If there is no previous child-custody determination that is
entitled to be enforced under this Article and a child-custody
proceeding has not been commenced in a court of a state having
jurisdiction under G.S. 50A-201 through G.S. 50A-203, a
child-custody determination made under this section remains in
effect until an order is obtained from a court of a state having
jurisdiction under G.S. 50A-201 through G.S. 50A-203. If a
child-custody proceeding has not been or is not commenced in a
court of a state having jurisdiction under G.S. 50A-201 through
G.S. 50A-203, a child-custody determination made under this
section becomes a final determination if it so provides, and this
State becomes the home state of the child.
(c) If there is a previous child-custody determination that is
entitled to be enforced under this Article, or a child-custody
proceeding has been commenced in a court of a state having
jurisdiction under G.S. 50A-201 through G.S. 50A-203, any order
issued by a court of this State under this section must specify in
the order a period that the court considers adequate to allow the
person seeking an order to obtain an order from the state having
jurisdiction under G.S. 50A-201 through G.S. 50A-203. The order
issued in this State remains in effect until an order is obtained
from the other state within the period specified or the period
expires.
(d) A court of this State which has been asked to make a
child-custody determination under this section, upon being
informed that a child-custody proceeding has been commenced in, or
a child-custody determination has been made by, a court of a state
having jurisdiction under G.S. 50A-201 through G.S. 50A-203 shall
immediately communicate with the other court. A court of this
State which is exercising jurisdiction pursuant to G.S. 50A-201
through G.S. 50A-203, upon being informed that a child-custody
proceeding has been commenced in, or a child-custody determination
has been made by, a court of another state under a statute similar
to this section shall immediately communicate with the court of
that state to resolve the emergency, protect the safety of the
parties and the child, and determine a period for the duration of
the temporary order. (1979, c. 110, s. 1; 1999-223, s. 3.)
§ 50A-205. Notice; opportunity to be heard; joinder.
(a) Before a child-custody determination is made under this
Article, notice and an opportunity to be heard in accordance with
the standards of G.S. 50A-108 must be given to all persons
entitled to notice under the law of this State as in child-custody
proceedings between residents of this State, any parent whose
parental rights have not been previously terminated, and any
person having physical custody of the child.
(b) This Article does not govern the enforceability of a
child-custody determination made without notice or an opportunity
to be heard.
(c) The obligation to join a party and the right to intervene as a
party in a child-custody proceeding under this Article are
governed by the law of this State as in child-custody proceedings
between residents of this State. (1979, c. 110, s. 1; 1999-223, s.
3.)
§ 50A-206. Simultaneous proceedings.
(a) Except as otherwise provided in G.S. 50A-204, a court of this
State may not exercise its jurisdiction under this Part if, at the
time of the commencement of the proceeding, a proceeding
concerning the custody of the child has been commenced in a court
of another state having jurisdiction substantially in conformity
with this Article, unless the proceeding has been terminated or is
stayed by the court of the other state because a court of this
State is a more convenient forum under G.S. 50A-207.
(b) Except as otherwise provided in G.S. 50A-204, a court of this
State, before hearing a child-custody proceeding, shall examine
the court documents and other information supplied by the parties
pursuant to G.S. 50A-209. If the court determines that a
child-custody proceeding has been commenced in a court in another
state having jurisdiction substantially in accordance with this
Article, the court of this State shall stay its proceeding and
communicate with the court of the other state. If the court of the
state having jurisdiction substantially in accordance with this
Article does not determine that the court of this State is a more
appropriate forum, the court of this State shall dismiss the
proceeding.
(c) In a proceeding to modify a child-custody determination, a
court of this State shall determine whether a proceeding to
enforce the determination has been commenced in another state. If
a proceeding to enforce a child-custody determination has been
commenced in another state, the court may:
(1) Stay the proceeding for
modification pending the entry of an order of a court of the other
state enforcing, staying, denying, or dismissing the proceeding
for enforcement;
(2) Enjoin the parties from continuing with the proceeding for
enforcement; or
(3) Proceed with the modification under conditions it considers
appropriate. (1979, c. 110, s. 1; 1999-223, s. 3.)
§ 50A-207. Inconvenient forum.
(a) A court of this State which has jurisdiction under this
Article to make a child-custody determination may decline to
exercise its jurisdiction at any time if it determines that it is
an inconvenient forum under the circumstances, and that a court of
another state is a more appropriate forum. The issue of
inconvenient forum may be raised upon motion of a party, the
court's own motion, or request of another court.
(b) Before determining whether it is an inconvenient forum, a
court of this State shall consider whether it is appropriate for a
court of another state to exercise jurisdiction. For this purpose,
the court shall allow the parties to submit information and shall
consider all relevant factors, including:
(1) Whether domestic violence has
occurred and is likely to continue in the future and which state
could best protect the parties and the child;
(2) The length of time the child has resided outside this State;
(3) The distance between the court in this State and the court in
the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume
jurisdiction;
(6) The nature and location of the evidence required to resolve
the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence; and
(8) The familiarity of the court of each state with the facts and
issues in the pending litigation.
(c) If a court of this State determines that it is an
inconvenient forum and that a court of another state is a more
appropriate forum, it shall stay the proceedings upon condition
that a child-custody proceeding be promptly commenced in another
designated state and may impose any other condition the court
considers just and proper.
(d) A court of this State may decline to exercise its jurisdiction
under this Article if a child-custody determination is incidental
to an action for divorce or another proceeding while still
retaining jurisdiction over the divorce or other proceeding.
(1979, c. 110, s. 1; 1999-223, s. 3.)
§ 50A-208. Jurisdiction declined by reason of conduct.
(a) Except as otherwise provided in G.S. 50A-204 or by other law
of this State, if a court of this State has jurisdiction under
this Article because a person seeking to invoke its jurisdiction
has engaged in unjustifiable conduct, the court shall decline to
exercise its jurisdiction unless:
(1) The parents and all persons acting
as parents have acquiesced in the exercise of jurisdiction;
(2) A court of the state otherwise having jurisdiction under G.S.
50A-201 through G.S. 50A-203 determines that this State is a more
appropriate forum under G.S. 50A-207; or
(3) No court of any other state would have jurisdiction under the
criteria specified in G.S. 50A-201 through G.S. 50A-203.
(b) If a court of this State declines to exercise its
jurisdiction pursuant to subsection (a), it may fashion an
appropriate remedy to ensure the safety of the child and prevent a
repetition of the unjustifiable conduct, including staying the
proceeding until a child-custody proceeding is commenced in a
court having jurisdiction under G.S. 50A-201 through G.S. 50A-203.
(c) If a court dismisses a petition or stays a proceeding because
it declines to exercise its jurisdiction pursuant to subsection
(a), it shall assess against the party seeking to invoke its
jurisdiction necessary and reasonable expenses including costs,
communication expenses, attorneys' fees, investigative fees,
expenses for witnesses, travel expenses, and child care during the
course of the proceedings, unless the party from whom fees are
sought establishes that the assessment would be clearly
inappropriate. The court may not assess fees, costs, or expenses
against this State unless authorized by law other than this
Article. (1979, c. 110, s. 1; 1999-223, s. 3.)
§ 50A-209. Information to be submitted to court.
(a) In a child-custody proceeding, each party, in its first
pleading or in an attached affidavit, shall give information, if
reasonably ascertainable, under oath as to the child's present
address or whereabouts, the places where the child has lived
during the last five years, and the names and present addresses of
the persons with whom the child has lived during that period. The
pleading or affidavit must state whether the party:
(1) Has participated, as a party or
witness or in any other capacity, in any other proceeding
concerning the custody of or visitation with the child and, if so,
the pleading or affidavit shall identify the court, the case
number, and the date of the child-custody determination, if any;
(2) Knows of any proceeding that could affect the current
proceeding, including proceedings for enforcement and proceedings
relating to domestic violence, protective orders, termination of
parental rights, and adoptions and, if so, the pleading or
affidavit shall identify the court, the case number, and the
nature of the proceeding; and
(3) Knows the names and addresses of any person not a party to the
proceeding who has physical custody of the child or claims rights
of legal custody or physical custody of, or visitation with, the
child and, if so, the names and addresses of those persons.
(b) If the information required by subdivisions (a) is not
furnished, the court, upon motion of a party or its own motion,
may stay the proceeding until the information is furnished.
(c) If the declaration as to any of the items described in
subdivisions (a)(1) through (3) is in the affirmative, the
declarant shall give additional information under oath as required
by the court. The court may examine the parties under oath as to
details of the information furnished and other matters pertinent
to the court's jurisdiction and the disposition of the case.
(d) Each party has a continuing duty to inform the court of any
proceeding in this or any other state that could affect the
current proceeding.
(e) If a party alleges in an affidavit or a pleading under oath
that the health, safety, or liberty of a party or child would be
jeopardized by disclosure of identifying information, the
information must be sealed and may not be disclosed to the other
party or the public unless the court orders the disclosure to be
made after a hearing in which the court takes into consideration
the health, safety, or liberty of the party or child and
determines that the disclosure is in the interest of justice.
(1979, c. 110, s. 1; 1999-223, s. 3.)
§ 50A-210. Appearance of parties and child.
(a) In a child-custody proceeding in this State, the court may
order a party to the proceeding who is in this State to appear
before the court in person with or without the child. The court
may order any person who is in this State and who has physical
custody or control of the child to appear in person with the
child.
(b) If a party to a child-custody proceeding whose presence is
desired by the court is outside this State, the court may order
that a notice given pursuant to G.S. 50A-108 include a statement
directing the party to appear in person with or without the child
and informing the party that failure to appear may result in a
decision adverse to the party.
(c) The court may enter any orders necessary to ensure the safety
of the child and of any person ordered to appear under this
section.
(d) If a party to a child-custody proceeding who is outside this
State is directed to appear under subsection (b) or desires to
appear personally before the court with or without the child, the
court may require another party to pay reasonable and necessary
travel and other expenses of the party so appearing and of the
child. (1979, c. 110, s. 1; 1999-223, s. 3.)
Part 3. Enforcement.
§ 50A-301. Definitions.
In this Part:
(1) "Petitioner" means a
person who seeks enforcement of an order for return of a child
under the Hague Convention on the Civil Aspects of International
Child Abduction or enforcement of a child-custody determination.
(2) "Respondent" means a person against whom a
proceeding has been commenced for enforcement of an order for
return of a child under the Hague Convention on the Civil Aspects
of International Child Abduction or enforcement of a child-custody
determination. (1999-223, s. 3.)
§ 50A-302. Enforcement under Hague Convention.
Under this Part, a court of this State may enforce an order for
the return of the child made under the Hague Convention on the
Civil Aspects of International Child Abduction as if it were a
child-custody determination. (1999-223, s. 3.)
§ 50A-303. Duty to enforce.
(a) A court of this State shall recognize and enforce a
child-custody determination of a court of another state if the
latter court exercised jurisdiction in substantial conformity with
this Article or the determination was made under factual
circumstances meeting the jurisdictional standards of this
Article, and the determination has not been modified in accordance
with this Article.
(b) A court of this State may utilize any remedy available under
other law of this State to enforce a child-custody determination
made by a court of another state. The remedies provided in this
Part are cumulative and do not affect the availability of other
remedies to enforce a child-custody determination. (1979, c. 110,
s. 1; 1999-223, s. 3.)
§ 50A-304. Temporary visitation.
(a) A court of this State which does not have jurisdiction to
modify a child-custody determination may issue a temporary order
enforcing:
(1) A visitation schedule made by a
court of another state; or
(2) The visitation provisions of a child-custody determination of
another state that does not provide for a specific visitation
schedule.
(b) If a court of this State makes an order under subdivisions
(a)(2) of this section, it shall specify in the order a period
that it considers adequate to allow the petitioner to obtain an
order from a court having jurisdiction under the criteria
specified in Part 2. The order remains in effect until an order is
obtained from the other court or the period expires. (1999-223, s.
3.)
§ 50A-305. Registration of child-custody determination.
(a) A child-custody determination issued by a court of another
state may be registered in this State, with or without a
simultaneous request for enforcement, by sending to the
appropriate court in this State:
(1) A letter or other document
requesting registration;
(2) Two copies, including one certified copy, of the determination
sought to be registered, and a statement under penalty of perjury
that to the best of the knowledge and belief of the person seeking
registration the order has not been modified; and
(3) Except as otherwise provided in G.S. 50A-209, the name and
address of the person seeking registration and any parent or
person acting as a parent who has been awarded custody or
visitation in the child-custody determination sought to be
registered.
(b) On receipt of the documents required by subsection (a), the
registering court shall:
(1) Cause the determination to be filed
as a foreign judgment, together with one copy of any accompanying
documents and information, regardless of their form; and
(2) Direct the petitioner to serve notice upon the persons named
pursuant to subdivison (a)(3), including notice of their
opportunity to contest the registration in accordance with this
section.
(c) The notice required by subdivision (b)(2) must state that:
(1) A registered determination is
enforceable as of the date of the registration in the same manner
as a determination issued by a court of this State;
(2) A hearing to contest the validity of the registered
determination must be requested within 20 days after service of
notice; and
(3) Failure to contest the registration will result in
confirmation of the child-custody determination and preclude
further contest of that determination with respect to any matter
that could have been asserted.
(d) A person seeking to contest the validity of a registered
order must request a hearing within 20 days after service of the
notice. At that hearing, the court shall confirm the registered
order unless the person contesting registration establishes that:
(1) The issuing court did not have
jurisdiction under Part 2;
(2) The child-custody determination sought to be registered has
been vacated, stayed, or modified by a court having jurisdiction
to do so under Part 2; or
(3) The person contesting registration was entitled to notice, but
notice was not given in accordance with the standards of G.S.
50A-108 in the proceedings before the court that issued the order
for which registration is sought.
(e) If a timely request for a hearing to contest the validity
of the registration is not made, the registration is confirmed as
a matter of law, and the person requesting registration and all
persons served must be notified of the confirmation.
(f) Confirmation of a registered order, whether by operation of
law or after notice and hearing, precludes further contest of the
order with respect to any matter that could have been asserted at
the time of registration. (1979, c. 110, s. 1; 1997-81, s. 1;
1999-223, s. 3.)
§ 50A-306. Enforcement of registered determination.
(a) A court of this State may grant any relief normally available
under the law of this State to enforce a registered child-custody
determination made by a court of another state.
(b) A court of this State shall recognize and enforce, but may not
modify, except in accordance with Part 2, a registered
child-custody determination of a court of another state.
(1999-223, s. 3.)
§ 50A-307. Simultaneous proceedings.
If a proceeding for enforcement under this Part is commenced in a
court of this State and the court determines that a proceeding to
modify the determination is pending in a court of another state
having jurisdiction to modify the determination under Part 2, the
enforcing court shall immediately communicate with the modifying
court. The proceeding for enforcement continues unless the
enforcing court, after consultation with the modifying court,
stays or dismisses the proceeding. (1999-223, s. 3.)
§ 50A-308. Expedited enforcement of child-custody
determination.
(a) A petition under this Part must be verified. Certified copies
of all orders sought to be enforced and of any order confirming
registration must be attached to the petition. A copy of a
certified copy of an order may be attached instead of the
original.
(b) A petition for enforcement of a child-custody determination
must state:
(1) Whether the court that issued the
determination identified the jurisdictional basis it relied upon
in exercising jurisdiction and, if so, what the basis was;
(2) Whether the determination for which enforcement is sought has
been vacated, stayed, or modified by a court whose decision must
be enforced under this Article and, if so, identify the court, the
case number, and the nature of the proceeding;
(3) Whether any proceeding has been commenced that could affect
the current proceeding, including proceedings relating to domestic
violence, protective orders, termination of parental rights, and
adoptions and, if so, identify the court, the case number, and the
nature of the proceeding;
(4) The present physical address of a child and the respondent, if
known;
(5) Whether relief in addition to the immediate physical custody
of the child and attorneys' fees is sought, including a request
for assistance from law enforcement officials and, if so, the
relief sought; and
(6) If the child-custody determination has been registered and
confirmed under G.S. 50A-305, the date and place of registration.
(c) Upon the filing of a petition, the court shall issue an
order directing the respondent to appear in person with or without
the child at a hearing and may enter any order necessary to ensure
the safety of the parties and the child. The hearing must be held
on the next judicial day after service of the order unless that
date is impossible. In that event, the court shall hold the
hearing on the first judicial day possible. The court may extend
the date of hearing at the request of the petitioner.
(d) An order issued under subsection (c) must state the time and
place of the hearing and advise the respondent that at the hearing
the court will order that the petitioner may take immediate
physical custody of the child and the payment of fees, costs, and
expenses under G.S. 50A-312, and may schedule a hearing to
determine whether further relief is appropriate, unless the
respondent appears and establishes that:
(1) The child-custody determination has not been registered and
confirmed under G.S. 50A-305 and that:
a. The issuing court did not have
jurisdiction under Part 2;
b. The child-custody determination for which enforcement is sought
has been vacated, stayed, or modified by a court having
jurisdiction to do so under Part 2;
c. The respondent was entitled to notice, but notice was not given
in accordance with the standards of G.S. 50A-108 in the
proceedings before the court that issued the order for which
enforcement is sought; or
(2) The child-custody determination for which enforcement is
sought was registered and confirmed under G.S. 50A-304, but has
been vacated, stayed, or modified by a court of a state having
jurisdiction to do so under Part 2. (1999-223, s. 3.)
§ 50A-309. Service of petition and order.
Except as otherwise provided in G.S. 50A-311, the petition and
order must be served, by any method authorized by the law of this
State, upon respondent and any person who has physical custody of
the child. (1999-223, s. 3.)
§ 50A-310. Hearing and order.
(a) Unless the court issues a temporary emergency order pursuant
to G.S. 50A-204 upon a finding that a petitioner is entitled to
immediate physical custody of the child, the court shall order
that the petitioner may take immediate physical custody of the
child unless the respondent establishes that:
(1) The child-custody determination has not been registered and
confirmed under G.S. 50A-305 and that:
a. The issuing court did not have
jurisdiction under Part 2;
b. The child-custody determination for which enforcement is sought
has been vacated, stayed, or modified by a court of a state having
jurisdiction to do so under Part 2; or
c. The respondent was entitled to notice, but notice was not given
in accordance with the standards of G.S. 50A-108 in the
proceedings before the court that issued the order for which
enforcement is sought; or
(2) The child-custody determination for which enforcement is
sought was registered and confirmed under G.S. 50A-305 but has
been vacated, stayed, or modified by a court of a state having
jurisdiction to do so under Part 2.
(b) The court shall award the fees,
costs, and expenses authorized under G.S. 50A-312 and may grant
additional relief, including a request for the assistance of law
enforcement officials, and set a further hearing to determine
whether additional relief is appropriate.
(c) If a party called to testify refuses to answer on the ground
that the testimony may be self-incriminating, the court may draw
an adverse inference from the refusal.
(d) A privilege against disclosure of communications between
spouses and a defense of immunity based on the relationship of
husband and wife or parent and child may not be invoked in a
proceeding under this Part. (1979, c. 110, s. 1; 1999-223, s. 3.)
§ 50A-311. Warrant to take physical custody of child.
(a) Upon the filing of a petition seeking enforcement of a
child-custody determination, the petitioner may file a verified
application for the issuance of a warrant to take physical custody
of the child if the child is immediately likely to suffer serious
physical harm or be removed from this State.
(b) If the court, upon the testimony of the petitioner or other
witness, finds that the child is imminently likely to suffer
serious physical harm or be removed from this State, it may issue
a warrant to take physical custody of the child. The petition must
be heard on the next judicial day after the warrant is executed
unless that date is impossible. In that event, the court shall
hold the hearing on the first judicial day possible. The
application for the warrant must include the statements required
by G.S. 50A-308(b).
(c) A warrant to take physical custody of a child must:
(1) Recite the facts upon which a
conclusion of imminent serious physical harm or removal from the
jurisdiction is based;
(2) Direct law enforcement officers to take physical custody of
the child immediately; and
(3) Provide for the placement of the child pending final relief.
(d) The respondent must be served with the petition, warrant,
and order immediately after the child is taken into physical
custody.
(e) A warrant to take physical custody of a child is enforceable
throughout this State. If the court finds on the basis of the
testimony of the petitioner or other witness that a less intrusive
remedy is not effective, it may authorize law enforcement officers
to enter private property to take physical custody of the child.
If required by exigent circumstances of the case, the court may
authorize law enforcement officers to make a forcible entry at any
hour.
(f) The court may impose conditions upon placement of a child to
ensure the appearance of the child and the child's custodian.
(1999-223, s. 3.)
§ 50A-312. Costs, fees, and expenses.
(a) The court shall award the prevailing party, including a state,
necessary and reasonable expenses incurred by or on behalf of the
party, including costs, communication expenses, attorneys' fees,
investigative fees, expenses for witnesses, travel expenses, and
child care during the course of the proceedings, unless the party
from whom fees or expenses are sought establishes that the award
would be clearly inappropriate.
(b) The court may not assess fees, costs, or expenses against a
state unless authorized by law other than this Article. (1999-223,
s. 3.)
§ 50A-313. Recognition and enforcement.
A court of this State shall accord full faith and credit to an
order issued by another state and consistent with this Article
which enforces a child-custody determination by a court of another
state unless the order has been vacated, stayed, or modified by a
court having jurisdiction to do so under Part 2. (1979, c.110,
s.1; 1999-223, s. 3.)
§ 50A-314. Appeals.
An appeal may be taken from a final order in a proceeding under
this Part in accordance with expedited appellate procedures in
other civil cases. Unless the court enters a temporary emergency
order under G.S. 50A-204, the enforcing court may not stay an
order enforcing a child-custody determination pending appeal.
(1999-223, s. 3.)
§ 50A-315. Role of prosecutor or public official.
(a) In a case arising under this Article or involving the Hague
Convention on the Civil Aspects of International Child Abduction,
the prosecutor or other appropriate public official may take any
lawful action, including resort to a proceeding under this Part or
any other available civil proceeding to locate a child, obtain the
return of a child, or enforce a child-custody determination if
there is:
(1) An existing child-custody
determination;
(2) A request to do so from a court in a pending child-custody
proceeding;
(3) A reasonable belief that a criminal statute has been violated;
or
(4) A reasonable belief that the child has been wrongfully removed
or retained in violation of the Hague Convention on the Civil
Aspects of International Child Abduction.
(b) A prosecutor or appropriate public official acting under
this section acts on behalf of the court and may not represent any
party. (1999-223, s. 3.)
§ 50A-316. Role of law enforcement.
At the request of a prosecutor or other appropriate public
official acting under G.S. 50A-315, a law enforcement officer may
take any lawful action reasonably necessary to locate a child or a
party and assist a prosecutor or appropriate public official with
responsibilities under G.S. 50A-315. (1979, c. 110, s. 1;
1999-223, s. 3.)
§ 50A-317. Costs and expenses.
If the respondent is not the prevailing party, the court may
assess against the respondent all direct expenses and costs
incurred by the prosecutor or other appropriate public official
and law enforcement officers under G.S. 50A-315 or G.S. 50A-316.
(1999-223, s. 3.)
< Back to Virtual
Library
|
