Beck v. Beck

• Decision Date: 20 August 1996
• Docket Number: No. COA95-1199,COA95-1199
• Parties: Rodney D. BECK, Plaintiff-Appellee, v. Christine Lynn BECK, Defendant-Appellant.
• Court: North Carolina Court of Appeals

Page 789

473 S.E.2d 789

123 N.C.App. 629

Rodney D. BECK, Plaintiff-Appellee, v. Christine Lynn BECK, Defendant-Appellant.

No. COA95-1199.

Court of Appeals of North Carolina.

Aug. 20, 1996.

Karen K. Fisher and James C. Lee, High Point, for defendant-appellant.

WALKER, Judge.

The parties were married on 13 August 1990 and had two children, Kyle Andrew Beck, born 29 October 1991, and Tyler Aaron Beck, born 6 October 1993. The parties moved to Kentucky in September 1992. On 30 September 1993, defendant moved to North Carolina with her son, Kyle. On 11 January 1994, the parties entered into a separation agreement which granted plaintiff "reasonable and liberal visitation" with the children but did not provide a schedule for such visitation. A divorce decree was entered in Kentucky incorporating the parties' separation agreement on 31 March 1994.

Following incorporation of the parties' agreement, the plaintiff was unable to schedule visitation with his children. Therefore, plaintiff made a motion to modify the custody order to include a specific schedule for visitation. On 7 February 1995, an order was entered granting plaintiff specific times for visitation, including one week in the spring. Thereafter, defendant continued to deny plaintiff visitation with their children and filed this action in Guilford County District Court to change jurisdiction and modify the Kentucky order. Pursuant to this action, defendant raised for the first time the issue of plaintiff's fitness.

The trial court made the following relevant conclusions:

Conclusions of Law

(1) The Hardin County District Court for Hardin County Kentucky has jurisdiction over the parties and subject matter of this action.

(2) It would be improper for this court, in this circumstance, to assume jurisdiction to adjudicate issues of child custody, visitation, and support when the State of Kentucky has properly done so....

From the trial court's order declining to assume jurisdiction and dismissing her motion to modify custody, defendant appeals.

The issue of a state's jurisdiction over child custody matters is governed by the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A (1980), and the Uniform Child Custody Jurisdiction Act (UCCJA), N.C.Gen.Stat. Ch. 50A (1989). See K.R.S. 403.400-.620 ( 1980). "The PKPA establishes national policy in the area of custody jurisdiction." Gasser v. Sperry, 93 N.C.App. 72, 74, 376 S.E.2d 478, 480 (1989). To the extent that any state custody statute conflicts with the PKPA, the federal act controls. Id.

On appeal defendant contends the trial court erred by finding that Kentucky properly assumed jurisdiction. Under the UCCJA, a state has jurisdiction to enter an initial or modified custody 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.

N.C.Gen.Stat. § 50A-3 (1989); See K.R.S. 403.420 (1980).

The PKPA provides substantially the same jurisdictional prerequisites as the UCCJA. Similarly, the PKPA allows a state to assume jurisdiction to determine custody issues if such state is the child's "home state." 28 U.S.C. § 1738A(c)(2)(A). However, unlike the UCCJA, the PKPA prohibits states from assuming jurisdiction under the "best interest" or "significant connection" factor unless no state is the "home state." 28 U.S.C. § 1738A(c)(2)(B). The PKPA defines "home state" as:

the State in which, immediately preceding the time involved, the child lived with his 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 such persons....

28 U.S.C. § 1738A (b)(4). This definition is substantially similar to "home state" as defined by the UCCJA. N.C.Gen.Stat. § 50A-2(5); See K.R.S. 403.410(5) (1980).

When plaintiff filed his divorce petition on 3 November 1993 requesting that Kentucky enter an order incorporating the parties' separation agreement, Tyler was less than six months old. Both the UCCJA and the PKPA provide that where a child is less than six months of age, the "home state" is the state in which the child lived from birth with any such persons. Since Tyler was born and resided here with his mother, North Carolina is the "home state." As such, Kentucky may not use the "best interest" or "significant connection" factor as a basis for assuming jurisdiction. Thus, Kentucky did not have jurisdiction to enter the initial custody decree with respect to Tyler and the parties are therefore not bound by it. See K.R.S. 403.510 (1980) (custody decrees bind parties only if Kentucky "had jurisdiction"). Accordingly, North Carolina is the "home state" of Tyler and the trial court erred in refusing to assume this jurisdiction.

We next consider whether Kentucky properly assumed jurisdiction of the parties' oldest son, Kyle. The plaintiff filed his divorce petition and requested that the parties' separation agreement be...