Gerhauser v. Van Bourgondien, 238 N.C.App. 275 (2014)
Held:
Vacated
There is a dissent.
- Timeline:
- Parties married in 1998 and had a child in 1998 and in 1999.
- 2002, action for custody filed in NC
- 2003, consent order entered in NC
- Sept. 2004, motion filed in NC
- Oct. 2004, mother and children move out of NC (to Hawaii and eventually Utah)
- Dec. 2004, consent order in NC
- Aug. 2009, Father moves to FL
- Oct. 2009, motion to modify filed in NC
- 2010 NC order, acknowledges mother and children living in Utah for several years and father living in FL
- Feb. 2012, mother and children move to Germany due to military deployment of mother’s new husband
- Mar. 2012, father files motion in NC
- 2013, order issued in NC
- Pursuant to G.S. 50A-202, because neither party nor the children have resided in NC for several years, NC does not have exclusive continuing jurisdiction of the child custody proceeding and may only modify its order if it has jurisdiction to make an initial custody determination pursuant to G.S. 50A-201.
- When there is no “home state” at the time an action is commenced, the court must determine if it has significant connection jurisdiction to make an initial child custody proceeding pursuant to G.S. 50A-201(a)(2).
- NC did not have significant connection jurisdiction as the children and mother moved away from NC in 2004 and the father moved away in 2009. The parties cannot consent to subject matter jurisdiction, and past custody proceedings themselves are insufficient to establish significant connection jurisdiction pursuant to G.S. 50A-201(a)(2).
- Because the children lived in Utah for 5.5 years prior to the filing of the action, and because the children regularly visited their father in Florida and he had joint custody and resided in Florida, both Utah and Florida have significant connection jurisdiction. NC need not decide which state has the most significant connection, but instead cannot exercise jurisdiction of necessity under G.S. 50A-201(a)(4) since at least one other state had significant connection jurisdiction.
Category:
UCCJEAStage:
Subject Matter JurisdictionTopic:
Modification Jurisdiction