Case Update: UCCJEA, child custody jurisdiction, simultaneous proceedings, registration of foreign custody order
On July 7, 2020, in McDowell v. Buchman, the Court of Appeals of North Carolina affirmed a trial court decision that refused registration of a Canadian custody order. The parents have a long history of litigating, which started shortly after the minor child was born (DOB 4/22/2010). In March 2011, the parents agreed to custody in a consent order, entered by an NC court. In November 2012, the parents agreed to a modified consent order, which was also entered by an NC court. It was evident that the parents were “totally unable to cooperate with one another regarding custody issues of the minor child” and a few weeks before the Father was set to begin his access with the child under the modified Consent Order, the Mother absconded to Ontario, Canada with their minor child. The Father initiated an ex parte emergency proceeding in North Carolina related to the child’s removal, and he received an ex parte custody order in early 2013. An arrest warrant was also issued for her criminal contempt. In April 2015, the Mother filed a request for custody in Ontario, Canada, submitted affidavits, and about 8 months later, received a custody order from the Canadian court, giving her sole custody. The Father had notice of the proceeding but did not answer or participate. The Mother sought to register the Ontario custody order in NC.
The NC court reviewed the section of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) that addresses simultaneous custody proceedings to determine whether Ontario’s courts assumed jurisdiction in substantial conformity with the UCCJEA. It concluded that Ontario should not have exercised jurisdiction because a simultaneous proceeding was already pending in NC (the father’s ex parte request, which was then slated for a further custody hearing). Ontario should not have assumed jurisdiction while a simultaneous proceeding was pending in NC, and therefore, its custody order cannot be registered, as it was not in substantial conformity with the UCCJEA.
While the Court of Appeals did not focus on this, the NC trial court did reference, in its 2012 modified custody order, that NC was the child’s "home state," and it had "continuing exclusive jurisdiction" over the child custody matter. On that basis, the Court of Appeals could have concluded that any action by Ontario would not be in substantial conformity with the UCCJEA because the NC court retained continuing, exclusive jurisdiction over its initial child-custody determination (unless it found itself to be an inconvenient forum and declined jurisdiction).