Initial Child Custody Determinations in North Carolina by Raleigh native, Jaime Humphries Davis Gailor, Wallis & Hunt, PLLC.

Every parent who is faced with a question of custody of his or her children in North Carolina courts must learn and understand the basic law regarding child custody determinations in North Carolina. This article addresses the basic law in North Carolina impacting initial determination of custody disputes.

In order for North Carolina courts to decide who will have custody of your children during or following a separation and divorce, they must have jurisdiction. In determining whether North Carolina does indeed have jurisdiction to hear your case, you must consult the Uniform Child Custody Jurisdiction and Enforcement Act. N.C. Gen. Stat. §50A (2008). According to the UCCJEA, there are five instances in which North Carolina may have jurisdiction over your initial custody claim.

If your child has lived with you or another person acting as a parent in North Carolina for at least six (6) consecutive months immediately prior to the filing of the action, or if your child is less than six months old and has lived in North Carolina since birth, then North Carolina would be considered your child’s “home state” and North Carolina would have jurisdiction to hear your initial custody claim. In addition, North Carolina would have jurisdiction to hear your case if it was your child’s home state within six months before the proceeding is commenced, AND even though the child is no longer in NC, at least one parent remains in the state.

If there is no “home state” or the court of an alleged “home state” declines to exercise jurisdiction because North Carolina is a more appropriate forum AND your child and at least one parent have a significant connection to North Carolina (other than mere physical presence) AND substantial evidence is available in North Carolina concerning your child’s care, protection, training, and personal relationships, then North Carolina may exercise jurisdiction over your initial custody claim.
A third instance in which North Carolina may assume jurisdiction of your initial custody claim is if North Carolina is a “more appropriate forum.” North Carolina will be considered the more appropriate forum of all states having jurisdiction (either because they are your child’s home state or because they have “significant connection” jurisdiction), decline to exercise jurisdiction because they determine that North Carolina is the more appropriate place for the claim to be heard. Factors which a court may consider in determining whether North Carolina is the more appropriate forum for the custody claim to be heard are: whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; the length of time the child has resided outside the state; the distance between the court in North Carolina and the court in the state that might otherwise assume jurisdiction; the relative financial circumstances of the parties; any agreement by the parties as to which state should assume jurisdiction; the nature and location of the evidence required to resolve the pending litigation including testimony of the child; the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and the familiarity of the court of each state with the facts and issues in the pending litigation. North Carolina may also assume jurisdiction by default if no court of any other state would have jurisdiction under the criteria listed above.

Finally, North Carolina may also assume jurisdiction on a temporary emergency basis in some circumstances. If your child is present in NC and has been abandoned, or it is necessary in an emergency to protect the child, because the child, or the child’s sibling or parent is subjected to or threatened with mistreatment or abuse, then NC may assume temporary emergency jurisdiction.

Contributor: Jaime H. Davis - Jaime Davis, a Raleigh Family Law Attorney is a North Caroline Board Certified Family Law Specialist with the Raleigh, North Carolina Divorce Law Firm of Gailor, Wallis & Hunt, PLLC. For more information contact: Raleigh, North Carolina Family Law Firm, Gailor, Wallis & Hunt at 1101 Haynes Street, Suite 201, Raleigh, NC 27604. Tel: 919-832-8488 or go to www.gailorwallishunt.com.

Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case. You may contact North Carolina Family Lawyers Gailor, Wallis & Hunt, PLLC, a full service divorce law firm, at 919-832-8488 or 910-509-7223.

This entry was posted on Saturday, April 18th, 2009 at 7:12 pm and is filed under Child Custody. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.