Custody of Bhatti, Matter of

• Decision Date: 15 May 1990
• Docket Number: No. 8917DC990,8917DC990
• Citation: 98 N.C.App. 493,391 S.E.2d 201
• Court: North Carolina Court of Appeals
• Parties: In the Matter of the CUSTODY OF Habib Arshad BHATTI, Saffiyah Arshad Bhatti, Ahmad Arshad Bhatti, and Mahboob Arshad Bhatti. Arshad BHATTI, Petitioner-Appellant, v. Kokab Arshad BHATTI a/k/a Kokab Said Choudhery Bhatti, Respondent-Appellee.

Page 201

391 S.E.2d 201

98 N.C.App. 493

In the Matter of the CUSTODY OF Habib Arshad BHATTI,

Saffiyah Arshad Bhatti, Ahmad Arshad Bhatti, and

Mahboob Arshad Bhatti.

Arshad BHATTI, Petitioner-Appellant, v. Kokab Arshad BHATTI a/k/a Kokab Said Choudhery Bhatti,

Respondent-Appellee.

No. 8917DC990.

Court of Appeals of North Carolina.

May 15, 1990.

Latham, Wood, Eagles & Hawkins by William A. Eagles, Graham, for petitioner-appellant.

Moseley & Whited, P.A. by W. Phillip Moseley, Graham, for respondent-appellee.

WELLS, Judge.

North Carolina's Uniform Child Custody Jurisdiction Act (UCCJA), N.C.Gen.Stat. § 50A et seq. (1989), and the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A (West Supp.1989), govern the issue of jurisdiction in child custody matters. See Gasser v. Sperry, 93 N.C.App. 72, 376 S.E.2d 478 (1989). When there are simultaneous proceedings in other states G.S. § 50A-6 provides with regard to jurisdiction:

(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.

Similarly, the PKPA provides in part:

A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.

28 U.S.C.A. § 1738A(g). Obviously, the prerequisites for exercising jurisdiction in substantial conformity with Chapter 50A and for exercising jurisdiction consistently with the provisions of the PKPA are essentially the same. Compare G.S. § 50A-3(a), subsections 1-4 and 28 U.S.C.A. § 1738A(c); see also Schrock v. Schrock, 89 N.C.App. 308, 365 S.E.2d 657 (1988). Unlike the UCCJA, the PKPA extends full faith and credit to child custody determinations, including temporary orders, made according to its jurisdictional guidelines. In addition, the PKPA's jurisdictional standards are designed to prohibit the concurrent exercise of jurisdiction by more than one state that sometimes occurs under the UCCJA's more flexible guidelines. See generally, Comment, The Parental Kidnapping Prevention Act: Is There An Enforcement Role for the Federal Courts?, 62 Wash.L.Rev. 841, 842-846 (1987).

If the Georgia court's exercise of jurisdiction meets the jurisdictional guidelines of the above Acts, then the trial court's order dismissing petitioner's action and enforcing the Georgia custody award was proper.

In this case the trial court found that the State of Georgia had assumed jurisdiction of the custody of the children and that a custody action was pending prior to the action in Caswell County. The trial court also found that a Georgia court had issued a temporary custody order which awarded custody to respondent. These findings are supported by the record. Based on these findings as well as other evidence before it, the trial court concluded that Georgia was the home state of the children and that Georgia had assumed jurisdiction.

For the purpose of jurisdiction in custody matters "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. G.S. § 50A-2(5); see also 28 U.S.C.A § 1738A(b)(4) (adding that periods of temporary absence of any such persons are counted as a part of the six-month period). A state properly assumes jurisdiction as the home state if it (i) is the home state at the 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. G.S. § 50A-3(a)(1); see also 28 U.S.C.A. § 1738A(c).

In our opinion the trial court properly declined to assert jurisdiction based on its conclusion that Georgia is the home state of these children. The materials before the trial court consisted of the verified complaints, the case file from Georgia, a conversation with the Georgia judge who issued the temporary custody order, the testimony of respondent and a Dr. Khawaja, brother-in-law of petitioner, and the arguments of counsel. The materials showed that petitioner moved to North Carolina in 1971 and began his medical studies at North Carolina Baptist Hospital in Winston-Salem. In November 1980 the parties were married in Pakistan. Respondent immediately joined petitioner in North Carolina where the two oldest children were born. The actual date is disputed, but at some point between December 1984 and February 1985, the family, then consisting of the two oldest children and Dr. and Mrs. Bhatti, moved from North Carolina to Georgia so that petitioner could practice medicine with his brother-in-law and sister. During a visit to North Carolina the Bhatti's third child was born. The Bhatti's fourth child was born during a visit to Pakistan. These...