Virginia Lawyers Weekly//July 23, 2007
Virginia Lawyers Weekly//July 23, 2007//
A father who lived in North Carolina with his son for most of the period between 2002 and 2006, when a North Carolina county social services department assumed temporary and emergency, non-secure custody of the boy, and who then went to Texas for three months and obtained custody orders from Texas state courts, cannot have a Texas court order enforced by a Norfolk Circuit Court under the Uniform Child Custody Jurisdiction and Enforcement Act.
The enforcement of the Texas court’s order depends entirely on whether Texas has jurisdiction over matters concerning the child’s custody. Initially, North Carolina properly exercised jurisdiction through the “temporary and emergency jurisdiction” authorized by the UCCJEA. Through this exercise of emergency jurisdiction, the Carteret County, N.C. Department of Social Service (CCDSS) was granted non-secure custody of the boy. His father and the Texas court, through its May 2, 2007 order, both appear to concede that North Carolina did, in fact, properly exercise temporary emergency jurisdiction over the boy’s custody.
Seeking to enforce the May 2, 2007 Texas court order, the father argues that Texas now has exclusive jurisdiction over the boy’s custody. That order asserts that Texas is the boy’s home state, which if true, would vest Texas with jurisdiction to make a custody determination under the UCCJEA. Further, the Texas order maintains that North Carolina is now without jurisdiction because any exercise of jurisdiction over the boy was temporary and must now yield to Texas’s jurisdiction over custody.
On the other hand, both CCDSS and the child’s guardian ad litem appointed by this court assert the Texas orders are void and unenforceable. CCDSS claims the UCCJEA gives North Carolina proper jurisdiction in this matter because it had already initiated the child custody proceedings concerning the boy’s future before the Texas court entered its order.
Texas has no jurisdiction in this matter. It is not the boy’s home state. North Carolina, being properly vested with jurisdiction under the UCCJEA, never declined to exercise that jurisdiction in favor of Texas. Finally, Texas should have declined to exercise jurisdiction in this matter because of the father’s unjustifiable conduct.
Under the UCCJEA, adopted by all 50 states, a state can gain initial jurisdiction in a custody matter if it is a child’s “home state.” Indeed, this appears to be the sole ground upon which the Texas courts have relied in asserting jurisdiction over the boy’s custody.
Given the definition of “home state” common to every states’ adoption of the UCCJEA – including Texas – it is difficult to comprehend how one could possibly conclude that Texas is the boy’s home state. After living with his father in North Carolina since 2002, the boy lived with his father in Texas from February 2006 until April 2006. The boy lived with his father in Texas for three months at the most. On April 20, 2006, while living in North Carolina with his father, the boy was taken into protective custody by CCDSS and continuously has remained under its supervision since that day. Clearly, the boy has never been in Texas for any six consecutive months. Texas cannot be the child’s home state because the UCCJEA confers “home state” status to a state only if a child has lived in that state with a parent or person acting as a parent for at least six consecutive months immediately before commencement of a child custody proceeding. The Texas court’s conclusion that Texas is the boy’s home state is erroneous, and this court holds that all of the Texas court orders asserting jurisdiction on those grounds are unenforceable in this commonwealth.
Further, North Carolina’s continued jurisdiction prevents Texas from exercising jurisdiction on other grounds, and the father’s uncooperative and deceitful conduct precludes Texas from having jurisdiction over this custody matter.
The father’s petition for enforcement of the Texas custody orders is denied. The Carteret County, N.C. General Court of Justice has exclusive and continuing jurisdiction over this custody matter, and the orders of that court regarding custody shall be enforced by Virginia authorities. The father is enjoined from contesting the validity of the North Carolina court orders concerning custody in any Virginia court, unless he first obtains leave of court to file such a challenge.
In re Joshua Smith (Poston, J.) Law No. L07-0886, July 10, 2007; Norfolk Cir. Ct. VLW 007-8-170, 19 pp.