Waly v. Alkamary, Court of Appeals of North Carolina, August 17, 2021 (UCCJEA)

Father filed a custody action in North Carolina in July 2016. Then, mother relocated to New Jersey and father relocated to Florida. In October 2016, the North Carolina court entered a temporary custody and child support order in which mother was granted primary custody. The temporary order included a finding that “the parties should consider that since neither currently resides in Cumberland County, North Carolina: Cumberland County, North Carolina is no longer the most convenient forum for custody litigation.” In April 2017, mother obtained a domestic violence protective order against father in New Jersey – this order prohibited father from having any communication with mother and appointed mother’s sister as the go-between for facilitating custody exchanges. Also in 2017, the parties filed custody-related motions in the North Carolina case and in December 2017, the North Carolina trial court entered a holiday visitation order which referenced the New Jersey DVPO.

In January 2018, mother filed a custody complaint in New Jersey. Mother then mailed a letter to the Cumberland County Clerk’s office, asking that the North Carolina proceeding be stayed (that letter was not filed or served on father). The North Carolina trial court held a (temporary) custody, child support, and contempt hearing in March 2018, at which time the trial court said it would not be staying the North Carolina proceeding that that North Carolina law is the law until the North Carolina judge and the New Jersey judge could talk and determine which court should have the case moving forward.

At some point, mother’s January 2018 custody action in New Jersey was dismissed, so in November 2018, mother filed a second custody complaint in New Jersey, but this time did not mention the existence of the North Carolina custody action in her pleadings. In March 2019, the New Jersey court entered an amended DVPO after remand from an appeal – that order stated that parenting time will be as set forth in the North Carolina order. In March 2019, the North Carolina court conducted a hearing on termination of PSS, alimony, and ED and at that time also entered an order stating that North Carolina has continuing jurisdiction over custody but postponed the custody trial until May 2019 so that the New Jersey DVPO could be clarified regarding the parties’ ability to communicate with each other regarding custody.

The final custody trial occurred in May 2019 in North Carolina and the court entered its custody order in June 2019. In this order, the court noted that the New Jersey order had not been clarified and that it was concerned because mother could use the no contact provisions of that DVPO to prevent father from having contact with the children and to alienate the children from father. The June 2019 custody order awarded primary physical custody to father and visitation to mother and provided that the parties may communicate with each other to facilitate visitation and discuss the welfare of the children. Mother appealed.

On appeal, mother argued that North Carolina lost custody jurisdiction when everyone relocated outside of North Carolina and so the North Carolina court did not have jurisdiction to enter its permanent custody order. The Court of Appeals disagreed with mother and affirmed the trial court’s order. In reaching its determination that North Carolina did have jurisdiction to enter a permanent custody order, the Court of Appeals noted that at the time the action commenced, North Carolina was the home state of the child (and mother did not dispute that North Carolina was the home state at the time the action commenced); that once jurisdiction attaches for child custody, jurisdiction exists “for all time until the cause is fully and completely determined”; and that, despite the fact that everyone moved out of North Carolina, North Carolina retained jurisdiction. The Court of Appeals further noted that, despite the fact that the North Carolina Court had mentioned that North Carolina may no longer be the most convenient forum, mother did not actually attempt to have New Jersey exercise custody jurisdiction (her first custody action there was dismissed and her second action there did not comply with the UCCJEA), nor did she actually, properly ask North Carolina to decline to exercise jurisdiction as an “inconvenient forum.” The Court of Appeals also held that the North Carolina court did not fail to give full faith and credit to the New Jersey DVOP when the North Carolina court ordered that the parties may have contact regarding the children. This is because the New Jersey DVPO itself deferred to the North Carolina custody order on matters related to custody.

November 5, 2021/by FamilyLaw