Title: S.L. 1979-110
Category: Introduced Bills

General Assembly of North Carolina	(8)

NORTH CAROLINA GENERAL ASSEMBLY
1979 SESSION

CHAPTER 110
SENATE BILL 205

AN ACT TO ENACT FOR NORTH CAROLINA THE UNIFORM CHILD CUSTODY JURISDICTION ACT AS RECOMMENDED BY THE GENERAL STATUTES COMMISSION.

The General Assembly of North Carolina enacts:

Section 1.  There is hereby added a new Chapter of the General Statutes to be designated Chapter 50A and to read as follows:
"CHAPTER 50A.
"Uniform Child Custody Jurisdiction Act.
"§ 50A-1.  Purposes of Chapter, construction of provisions. — (a) The general purposes of this Chapter are to:
(1)	avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
(2)	promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;
(3)	assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and the child's family have the closest connection and where significant evidence concerning the child's care, protection, training, and personal relationships is most readily available, and that courts of this State decline the exercise of jurisdiction when the child and the child's family have a closer connection with another state;
(4)	discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
(5)	deter abductions and other unilateral removals of children undertaken to obtain custody awards;
(6)	avoid re-litigation of custody decisions of other states in this State insofar as feasible;
(7)	facilitate the enforcement of custody decrees of other states;
(8)	promote and expand the exchange of information and other forms of mutual assistance between the courts of this State and those of other states concerned with the same child; and
(9)	make uniform the law of those states which enact it.
(b)	This Chapter shall be construed to promote the general purposes stated in this section.
"§ 50A-2.  Definitions. — As used in this Chapter:
(1)	'Contestant' means a person, including a parent, who claims a right to custody or visitation rights with respect to a child.
(2)	'Custody determination' means a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person.
(3)	'Custody proceeding' includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings.
(4)	'Decree' or 'custody decree' means a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree.
(5)	'Home state' means the state in which the child immediately preceding the time involved lived with the child's parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.
(6)	'Initial decree' means the first custody decree concerning a particular child.
(7)	'Modification decree' means a custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court.
(8)	'Physical custody' means actual possession and control of a child.
(9)	'Person acting as parent' means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody; and
(10)	'State' means any state, territory, or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia.
"§ 50A-3.  Jurisdiction. — (a) A court of this State authorized to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1)	this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this State because of the child's removal or retention by a person claiming the child's custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
(2)	it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and the child's parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence relevant to the child's present or future care, protection, training, and personal relationships; or
(3)	the child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4)	(i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
(b)	Except under paragraphs (3) and (4) of subsection (a), physical presence in this State of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination.
(c)	Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.
"§ 50A-4.  Notice and opportunity to be heard. — Before making a decree under this Chapter reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child.
"§ 50A-5.  Service of notice. — The notice required by G.S. 50A-4 shall be given in a manner reasonably calculated to give actual notice and shall be served in the same manner as the manner of service of process set out in G.S. 1A-1, Rule 4. Proof of the service of the notice required by G.S. 50A-4 shall be made in the same manner as the manner to prove the service of process set out in G.S. 1A-1, Rule 4.
"§ 50A-6.  Simultaneous proceedings in other states. — (a) If at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Chapter, a court of this State shall not exercise its jurisdiction under this Chapter, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons.
(b)	Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties under G.S. 50A-9 and shall consult the child custody registry established under G.S. 50A-16 concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.
(c)	If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with G.S. 50A-19 through G.S. 50A-22. If a court of this State has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.
"§ 50A-7.  Inconvenient forum. — (a) A court which has jurisdiction under this Chapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
(b)	A finding of inconvenient forum may be made upon the court's own motion or upon motion of a party or a guardian ad litem or other representative of the child.
(c)	In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(1)	if another state is or recently was the child's home state;
(2)	if another state has a closer connection with the child and the child's family or with the child and one or more of the contestants;
(3)	if substantial evidence relevant to the child's present or future care, protection, training, and personal relationships is more readily available in another state;
(4)	if the parties have agreed on another forum which is no less appropriate; and
(5)	if the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in G.S. 50A-1.
(d)	Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.
(e)	If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate such party's consent and submission to the jurisdiction of the other forum.
(f)	The court may decline to exercise its jurisdiction under this Chapter if a custody determination is incidental to an action for divorce or another proceeding while retaining jurisdiction over the divorce or other proceeding.
(g)	If it appears to the court that it is clearly an inappropriate forum it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this State, necessary travel and other expenses, including attorneys' fees, incurred by other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.
(h)	Upon dismissal or stay of proceedings under this section the court shall inform the court found to be the more appropriate forum of this fact, or if the court which would have jurisdiction in the other state is not certainly known, shall transmit the information to the court administrator or other appropriate official for forwarding to the appropriate court.
(i)	Any communication received from another state informing this State of a finding of inconvenient forum because a court of this State is the more appropriate forum shall be filed in the custody registry of the appropriate court. Upon assuming jurisdiction the court of this State shall inform the original court of this fact.
"§ 50A-8.  Jurisdiction declined by reason of conduct. — (a) If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.
(b)	Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.
(c)	In appropriate cases a court dismissing a petition under this section may charge the petitioner with necessary travel and other expenses, including attorneys' fees, incurred by other parties or their witnesses.
"§ 50A-9.  Information under oath to be submitted to the court. — (a) Every party in a custody proceeding in such party's first pleading or in an affidavit attached to that pleading shall give information under oath as to the child's present address, the places where the child has lived within the last five years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit every party shall further declare under oath whether:
(1)	such party has participated as a party, witness, or in any other capacity in any other litigation concerning the custody of the same child in this or any other state;
(2)	such party has information of any custody proceeding concerning the child pending in a court of this or any other state; and
(3)	such party knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.
(b)	If the declaration as to any of the above items 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 as to other matters pertinent to the court's jurisdiction and the disposition of the case.
(c)	Each party has a continuing duty to inform the court of any custody proceeding concerning the child in this or any other state of which such party obtained information during this proceeding.
"§ 50A-10.  Additional parties. — If the court learns from information furnished by the parties pursuant to G.S. 50A-9 or from other sources that a person not a party to the custody proceeding has physical custody of the child or claims to have custody or visitation rights with respect to the child, it shall order that person to be joined as a party and to be duly notified of the pendency of the proceeding and of such person's joinder as a party. Such person shall be served with process or otherwise notified in accordance with G.S. 50A-5.
"§ 50A-11.  Appearance of parties and the child. — (a) The court may order any party to the proceeding to appear personally before the court. If that party has physical custody of the child, the court may order that such party appear personally with the child.
(b)	The court may order that the notice given under G.S. 50A-5 include a statement directing that party to appear personally with or without the child and declaring that failure to appear may result in a decision adverse to that party.
(c)	If a party to the 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 to the clerk of the court travel and other necessary expenses of the party so appearing and of the child if this is just and proper under the circumstances.
"§ 50A-12.  Binding force and res judicata effect of custody decree. — A custody decree rendered by a court of this State which has jurisdiction under G.S. 50A-3 binds all parties who have been served or notified in accordance with G.S. 50A-5 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those parties, the custody decree is conclusive as to all issues of law and fact decided and as to the custody determination made unless and until that determination is modified pursuant to law, including the provisions of this Chapter.
"§ 50A-13.  Recognition of out-of-state custody decrees. — The courts of this State shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this Chapter or which was made under factual circumstances meeting the jurisdictional standards of this Chapter, so long as that decree has not been modified in accordance with jurisdictional standards substantially similar to those of this Chapter.
"§ 50A-14.  Modification of custody decree of another state. — (a) If a court of another state has made a custody decree, a court of this State shall not modify that decree unless (1) it appears to the court of this State that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this Chapter or has declined to assume jurisdiction to modify the decree and (2) the court of this State has jurisdiction.
(b)	If a court of this State is authorized under subsection (a) and G.S. 50A-8 to modify a custody decree of another state it shall give due consideration to the transcript of the record and other documents of all previous proceedings submitted to it in accordance with G.S. 50A‑22.
"§ 50A-15.  Filing and enforcement of custody decree of another state. — (a) An exemplified copy of a custody decree of another state may be filed in the office of the clerk of any superior court of this State. The clerk shall treat the decree in the same manner as a custody decree of a court of this State. A custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rendered by a court of this State.
(b)	A person violating a custody decree of another state which makes it necessary to enforce the decree in this State may be required to pay necessary travel and other expenses, including attorneys' fees, incurred by the party entitled to the custody or such party's witnesses.
"§ 50A-16.  Registry of out-of-state custody decrees and proceedings. — The clerk of each superior court shall maintain a registry in which he shall enter the following:
(1)	exemplified copies of custody decrees of other states received for filing;
(2)	communications as to the pendency of custody proceedings in other states;
(3)	communications concerning a finding of inconvenient forum by a court of another state; and
(4)	other communications or documents concerning custody proceedings in another state which may affect the jurisdiction of a court of this State or the disposition to be made by it in a custody proceeding.
"§ 50A-17.  Certified copies of custody decree. — The clerk of a superior court of this State, at the request of the court of another state or at the request of any person who is affected by or has a legitimate interest in a custody decree, shall certify and forward a copy of the decree to that court or person.
"§ 50A-18.  Taking testimony in another state. — In addition to other procedural devices available to a party, any party to the proceeding or a guardian ad litem or other representative of the child may adduce testimony of witnesses, including parties and the child, by deposition or otherwise, in another state. The court on its own motion may direct 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 shall be taken.
"§ 50A-19.  Hearings and studies in another state; orders to appear. — (a) A court of this State may request the appropriate court of another state to hold a hearing to adduce evidence, to order a party to produce or give evidence under other procedures of that state; and to forward to the court of this State certified copies of the transcript of the record of the hearing, and the evidence otherwise adduced. The cost of the services may be assessed against the parties in the discretion of the court.
(b)	A court of this State may request the appropriate court of another state to order a person notified under the provisions of G.S. 50A-4 in a custody proceedings pending in the court of this State to appear in the proceedings, and if that person has physical custody of the child, to appear with the child. The request may state that travel and other necessary expenses of the party and of the child whose appearance is desired will be assessed against another party or will otherwise be paid.
"§ 50A-20.  Assistance to courts of other states. — (a) Upon request of the court of another state the courts of this State which are authorized to hear custody matters may order a person in this State to appear at a hearing to adduce evidence or to produce or give evidence under other procedures available in this State or may order social studies to be made for use in a custody proceeding in another state. A certified copy of the transcript of the record of the hearing or the evidence otherwise adduced and any social studies prepared shall be forwarded by the clerk of the court to the requesting court.
(b)	A person within this State may voluntarily give testimony or a statement in this State for use in a custody proceeding outside this State.
(c)	Upon request of the court of another state a competent court of this State may order a person in this State to appear alone or with the child in a custody proceeding in another state. The court may condition compliance with the request upon assurance by the other state that state travel and other necessary expenses will be advanced or reimbursed.
"§ 50A-21.  Preservation of documents for use in other states. — In any custody proceeding in this State the court shall preserve the pleadings, orders and decrees, any record that has been made of its hearings, and other pertinent documents until the child reaches 18 years of age. Upon appropriate request of the court of another state the court shall forward to the other court certified copies of any or all of such documents.
"§ 50A-22.  Request for court records of another state. — If a custody decree has been rendered in another state concerning a child involved in a custody proceeding pending in a court of this State, the court of this State upon taking jurisdiction of the case may request of the court of the other state a certified copy of the transcript of any court record and other documents mentioned in G.S. 50A-21.
"§ 50A-23.  International application. — The general policies of this Chapter extend to the international area. The provisions of this Chapter relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.
"§ 50A-24.  Short title. — This Chapter may be cited as the 'Uniform Child Custody Jurisdiction Act'.
"§ 50A-25.  Emergency orders. — Nothing in this Chapter shall be interpreted to limit the authority of the court to issue an interlocutory order under the provisions of G.S. 50-13. 5(d)(2); or an immediate custody order under the provisions of G.S. 7A-284."
Sec. 2.  Severability. If any provisions of this act or the application thereof to any person or circumstance is held invalid, its invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
Sec. 3.  G.S. 6-21, as the same appears in the 1977 Cumulative Supplement to Volume 1B of the General Statutes, is hereby amended by adding a new subdivision (11) thereto to read as follows:
"(11)	In custody proceedings under Chapter 50A of the General Statutes."
Sec. 4.  G.S. 7A-279, as the same appears in the 1977 Cumulative Supplement to Volume 1B of the General Statutes, is hereby amended by adding a new sentence at the end thereto to read as follows:
"Provided that, the court has jurisdiction to issue a custody decree under the provisions of G.S. 7A-286 only in accordance with the provisions of Chapter 50A of the General Statutes."
Sec. 5.  G.S. 7A-286, as the same appears in the 1977 Cumulative Supplement to Volume 1B of the General Statutes, is hereby amended on line one of the fifth unnumbered paragraph by deleting the word "The" and inserting in lieu thereof the words "Subject to the applicable provisions of Chapter 50A in regard to custody decrees the".
Sec. 6.  G.S. 7A-289.22, as the same appears in the 1977 Cumulative Supplement to Volume 1B of the General Statutes, is hereby amended in subdivision (3) by deleting the following: "; and to that end this Article should be liberally construed"; and is further amended by adding a new subdivision (4) thereto to read as follows: "(4) This Article shall not be used to circumvent the provisions of Chapter 50A, the Uniform Child Custody Jurisdiction Act."
Sec. 7.  G.S. 7A-289.23, as the same appears in the 1977 Cumulative Supplement to Volume 1B of the General Statutes, is hereby amended by adding a new sentence to the end thereof to read as follows:
"Provided that, before exercising jurisdiction under this Article the court shall find that it would have jurisdiction to make a child custody determination under the provisions of G.S. 50A-3."
Sec. 8.  G.S. 7A-289.25, as the same appears in the 1977 Cumulative Supplement to Volume 1B of the General Statutes, is hereby amended at the end thereof by adding a new subdivision (7) thereto to read as follows:
"(7)	That the petition has not been filed to circumvent the provisions of Chapter 50A, the Uniform Child Custody Jurisdiction Act."
Sec. 9.  G.S. 33-2, as the same appears in the 1977 Cumulative Supplement to Volume 2A of the General Statutes, is hereby amended on line three by deleting the words "disposition of the custody and tuition of" and inserting in lieu thereof the words "a guardian for"; and is further amended on lines nine and ten by deleting the words "court in awarding custody in the absence of a surviving parent, subject to the provisions of G.S. 50-13.1 through 50-13.8," and inserting in lieu thereof the words "clerk of superior court in appointing a guardian in the absence of a surviving parent"; and is further amended on line 13 by deleting the words "the custody and tuition" and inserting in lieu thereof the words "to be the guardian".
Sec. 10.  G.S. 33-7, as the same appears in the 1978 Interim Supplement to the General Statutes, is hereby amended on line three thereof by deleting the words "custody and".
Sec. 11.  G.S. 50-11.2, as the same appears in the 1976 Replacement Volume 2A, is hereby amended by adding at the end thereof a new sentence to read as follows: "The jurisdictional requirements of G.S. 50A-3 shall apply in regard to a custody decree."
Sec. 12.  G.S. 50-13.5, as the same appears in the 1976 Replacement Volume 2A, is hereby amended as follows:
1.	In subsection (a) by deleting the second sentence thereof.
2.	In subsection (b) by deleting subdivision (2) thereof.
3.	In subsection (c) by rewriting subdivision (2) thereof to read as follows: "(2) The courts of this State shall have jurisdiction to enter orders providing for the custody of a minor child under the provisions of G.S. 50A-3."; and is further amended in subsection (c) by deleting subdivisions (3), (4), (5) and (6).
4.	In subsection (d) by rewriting subdivision (1) thereof to read as follows: "(1) Service of process in civil actions for the custody of minor children shall be as in other civil actions. Motions for support of a minor child in a pending action may be made on five days notice to the other parties and compliance with G.S. 50-13.5(e). Motions for custody of a minor child in a pending action may be made on 10 days notice to the other parties and after compliance with G.S. 50A-4."
5.	In subsection (e) on line one by deleting the word "Custody" and inserting in lieu thereof the word "Support"; and also in subsection (e) in lines 6 and 8 of subdivision (1) by deleting the word "custody" and inserting in lieu therof the word "support"; and also in subsection (e) in line two of subdivision (4) by deleting the word "custody" and inserting in lieu thereof the word "support".
Sec. 13.  G.S. 50-13.7 as the same appears in the 1976 Replacement Volume 2A is hereby rewritten to read as follows:
"§ 50-13.7.  Modification of order for child support or custody. — (a) An order of a court of this State for support of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. Subject to the provisions of G.S. 50A-3, an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.
(b)	When an order for support of a minor child has been entered by a court of another state, a court of this State may, upon gaining jurisdiction, and upon a showing of changed circumstances, enter a new order for support which modifies or supersedes such order for support. Subject to the provisions of G.S. 50A-3, when an order for custody of a minor child has been entered by a court of another state, a court of this State may, upon gaining jurisdiction, and a showing of changed circumstances, enter a new order for custody which modifies or supersedes such order for support."
Sec. 14.  This act shall become effective July 1, 1979.
In the General Assembly read three times and ratified, this the 6th day of March, 1979.

Page 	Introduced Bill

Introduced Bill	Page