Can I Transfer My Child Custody Case From North Carolina To A Different State?

Is it possible to have a child custody lawsuit moved from North Carolina to another state? Yes, it is possible for a North Carolina court to “remove” or transfer a child custody action to another state.

In the recent (August 4, 2020) opinion, Harter v. Eggleston, COA 19-493, the North Carolina Court of Appeals affirmed a trial court order that granted the mother’s motion to remove the child custody case to Ohio because North Carolina was an inconvenient forum.

In Harter v. Eggleston, the parties commenced their child custody action in North Carolina in 2013 and entered into a consent order for child custody. Shortly thereafter, the mother moved to Ohio whereupon both parties filed motions to modify custody, and in 2015 the parties entered into a consent order giving the mother primary physical custody of the minor child in Ohio but naming North Carolina as the minor child’s “home state.”

In 2018, the father filed another motion to modify child custody. In response, the mother filed a “Motion to Remove” the North Carolina child custody case to the State of Ohio on the grounds that North Carolina was an inconvenient forum. Both parties submitted verified motions and affidavits in support of their positions. The trial judge then held a hearing on both parties’ verified motions and entered an order in February 2019 concluding that North Carolina was an inconvenient forum and that Ohio would be a more convenient forum. The trial court thus declined to exercise jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) and stayed proceedings in North Carolina.

The father appealed, and the North Carolina Court of Appeals affirmed the trial court’s order transferring the custody case to Ohio. The Court of Appeals noted that even when a North Carolina court has jurisdiction over a child custody action (i.e., where North Carolina was the child’s home state when a prior order was entered by a North Carolina court), the UCCJEA allows the North Carolina court to “decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances, and that a court of another state is a more appropriate forum.”

In examining whether another state is a more appropriate forum, the North Carolina court is required to consider relevant factors such as the following:

• Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
• The length of time the child has resided outside this State;
• The distance between the court in this State and the court in the state that would assume jurisdiction;
• The relative financial circumstances of the parties;
• Any agreement of the parties as to which state should assume jurisdiction;
• The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
• The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
• The familiarity of the court of each state with the facts and issues in the pending litigation.

See N.C. Gen. Stat. § 50A-207.

In affirming the trial court’s order moving the child custody case to Ohio, the North Carolina Court of Appeals held that the trial court properly considered the verified affidavits supplied by both parties which contained information concerning the various factors pertinent to the court’s determination. The Court of Appeals noted that affidavits and verified motions (which both parties filed) constitute competent evidence in the determination of an inconvenient forum under the UCCJEA.

Because the trial court in Harter v. Eggleston considered the relevant factors in N.C. Gen. Stat. § 50A-207, and made appropriate findings of fact on those relevant factors which were based on the evidence that the parties chose to submit to the court, the North Carolina Court of Appeals affirmed the trial court’s order allowing the mother to remove the child custody case from North Carolina to Ohio.

If you have questions about a child custody case pending in North Carolina that you want removed to another state, contact the Winston-Salem family lawyers at Hartsoe & Associates today to schedule a consultation with a dedicated North Carolina family law attorney.