Archive

• Custody jurisdiction: When is an absence from the home state a ‘temporary absence’?

  This entry was contributed by Cheryl Howell on April 9, 2025 at 9:00 am and is filed under Family Law.

  Most people familiar with the law relating to child custody are familiar with the definition of the ‘home state’ of a child and the importance of the home state when determining whether a state has subject matter jurisdiction to make a child custody determination.

  G.S. 50A-102(7) states:

  “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. … A period of temporary absence of any of the mentioned persons is part of that period.” [emphasis added]

  When an 11-year-old child has lived in North Carolina with her parents for her entire life but traveled to Myrtle Beach with her mother for a two-week beach vacation, it seems obvious that North Carolina will continue to be the home state of the child when mother files a custody action in North Carolina one month after she and the child return from the beach trip. The two-week period when the child was not in North Carolina clearly was a temporary absence, meaning the two weeks out of the state is “part of” the six months immediately before the commencement of the child-custody proceeding.

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• The NC Court of Appeals addresses “self-executing” modification provisions in custody orders

  This entry was contributed by Cheryl Howell on August 7, 2024 at 2:28 pm and is filed under Family Law.

  The North Carolina Supreme Court has stated that “[a] judgment awarding custody is based upon conditions found to exist at the time it is entered ….” Stanback v. Stanback, 266 N.C. 72, 76 (1965). See also Kellanos v. Kellanos, 251 N.C. App. 149 (2016)( a district court must consider the pros and cons of ordering primary custody with each parent, contemplating the two options as they exist [at the time of the hearing], and then choose which one is in the child’s best interest.”).

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• Registration of a Foreign Custody Order Pursuant to GS 50A-305 Does Not Register the Child Support Provisions in the Same Order

  This entry was contributed by Cheryl Howell on December 20, 2023 at 3:12 pm and is filed under Family Law.

  A child support order entered by a court in a jurisdiction other than North Carolina must be registered in North Carolina pursuant to the Uniform Interstate Family Support Act, N.C. Gen. State. Chapter 52C (“UIFSA”), before it can be enforced or modified in North Carolina. G.S. 52C-6-609. A child custody order entered by a court in a jurisdiction other than North Carolina is not required to be registered before it can be modified or enforced in North Carolina, see blog post https://civil.sog.unc.edu/does-a-foreign-custody-order-have-to-be-registered-before-our-court-can-enforce-it-or-modify-it/, March 6, 2015, but the Uniform Child Custody Jurisdiction Act, N.C. Gen Stat. Chapter 50A (the “UCCJEA”) does provide a registration process for a foreign custody order when a parent or other custodian wants assurance that North Carolina courts will recognize and enforce an out-of-state custody order. G.S. 50A-305.

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• Is a parent always a ‘necessary party’ to a custody action?

  This entry was contributed by Cheryl Howell on November 15, 2023 at 12:25 pm and is filed under Family Law.

  Consider a custody action brought by a grandparent against the mother of a child. Grandmother is seeking primary custody, arguing that mother is unfit and has waived her constitutional right to exclusive care, custody, and control of her child. Grandmother does not name the father of the child as a defendant and makes no attempt to serve him with process. The complaint states that neither the grandmother nor the mother know the location of the father, and the father has never been involved in the life of the child. Can the court move forward on grandmother’s claim without the father named as a party?

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• Child custody jurisdiction: what happens when everyone leaves the state while the case is pending?

  This entry was contributed by Cheryl Howell on December 8, 2021 at 9:00 am and is filed under Family Law.

  Suppose mother files an action for custody when North Carolina is the home state of the child and mother and father both reside in North Carolina. Temporary orders are entered in the case and a couple of years go by without a permanent order being entered. When mom requests a trial date for entry of a permanent order, dad files a motion to dismiss the case for lack of jurisdiction because mom, the child and dad all now reside in other states. No one resides in North Carolina. Should the case be dismissed?

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• More on Law Enforcement Involvement in Custody Cases

  This entry was contributed by Cheryl Howell on June 16, 2017 at 9:00 am and is filed under Family Law.

  More on Law Enforcement Involvement in Custody Cases

  In my earlier blog post, Ordering Law Enforcement Officers to Enforce a Child Custody Order, Jan. 15, 2016, I discussed North Carolina case law indicating that a trial court’s authority to order law enforcement to assist in the enforcement of a child custody order is very limited. The General Assembly recently enacted legislation to clarify that the warrant provision in GS 50A-311 is a tool available to trial court judges seeking to enforce North Carolina custody orders as well as orders issued in other states and countries.

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• Attorney Fees in Child Custody Actions

  This entry was contributed by Ann Anderson on April 12, 2017 at 8:00 am and is filed under Court Costs and Fees, Family Law.

  As I mentioned in an earlier post, parties to civil actions are responsible for paying their own attorneys’ fees unless a statute specifically permits fee shifting.  In child custody actions, G.S. 50-13.6 allows a court to shift some or all of one party’s fees to the other party under certain circumstances.  The statute provides that:

  In an action or proceeding for the custody or support, or both, of a minor child, including a motion in the cause for the modification or revocation of an existing order for custody or support, or both, the court may in its discretion order payment of reasonable attorney’s fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit.

  If the grounds for entitlement are met, awarding the fee is still in the court’s discretion, as is the amount awarded. Our courts have made clear, however, that fee orders will be remanded if they do not include specific findings of fact as to both entitlement and reasonableness. I discuss the required findings below.

  Policy.  The purpose of the fee-shifting provision in 50-13.6 is not to act as sanction against the party ordered to pay the other’s fees.  Instead, it is to help level the playing field for a party at a financial disadvantage in litigating custody of a child.  As our Supreme Court has said, the statute helps make it possible for a party “to employ adequate counsel to enable [him or her], as litigant, to meet [the other party] in the suit.” Taylor v. Taylor, 343 N.C. 50 (1996).  For this reason, fee eligibility does not depend on the outcome of the case. Fees are available even to a party who does not prevail, as long as he or she participated in good faith.  Hausle v. Hausle, 226 N.C. App. 241 (2013). Continue Reading

• 2016 Legislative Changes Impacting Child Welfare

  This entry was contributed by Sara DePasquale on July 20, 2016 at 5:45 am and is filed under Child Welfare Law.

  *This post was updated on August 1, 2016 to reflect the Session Law for H424.

  The 2016 Appropriations Act (S.L. 2016-94) addresses more than the State’s budget. Section 12.C makes substantive changes to the General Statutes in Chapter 7B that govern abuse, neglect, or dependency proceedings. The statutory amendments became effective on July 1st. In addition, S.L. 2016-115 (H424), creates a new criminal statute, “The Unlawful Transfer of Custody of a Minor Child,” and is effective for offenses committed on or after December 1, 2016. The law also amends the definition of a neglected juvenile in G.S. Chapter 7B.  Continue Reading

• Child Custody and Support: Jurisdiction to Modify

  This entry was contributed by Cheryl Howell on April 15, 2016 at 5:00 am and is filed under Family Law.

  Unlike other civil judgments, custody and support orders can be modified when there has been a substantial change in circumstances since the order was entered. This rule is codified in North Carolina at GS 50-13.7 and every state in the country has a similar statute.

  While this authority is broad and straight forward, there are other statutory provisions that place significant limits on a court’s subject matter jurisdiction to modify a custody or support order – whether the order originally was entered in NC or in some other state or country. These statutory provisions were enacted for the purpose of discouraging parents from running from state to state in the hope of obtaining a more favorable court order.

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• Abuse, Neglect, Dependency Actions Automatically Stay Custody Claims in Civil Actions

  This entry was contributed by Sara DePasquale on March 27, 2015 at 5:00 am and is filed under Adoptions, Child Welfare Law, Family Law.

  The district court has exclusive, original jurisdiction over all abuse, neglect, and dependency (A/N/D) proceedings. When a court obtains that jurisdiction after an A/N/D petition has been filed by a county department of social services (DSS), “any other civil action in this State in which the custody of the juvenile is an issue is automatically stayed as to that issue, unless the juvenile proceeding and the civil custody action or claim are consolidated … or the court in the juvenile proceeding enters an order dissolving the stay.” G.S. 7B-200(c)(1).

  What does this mean? Continue Reading