A California Court Cannot Just Kick Out a Mr. X Factor

In 2017, Mother [M] and Father [F] lived in North Carolina with their two children, when they decided to divorce.

They filed the appropriate paperwork according to North Carolina law regarding child custody and support and property issues.  There was one clause in the divorce agreement regarding who may be around the children when either parent had custody.  It was known as The Visitor Provision.  The provision is titled “Persons of the Opposite Sex and states:

"Neither Father nor Mother shall have any adult unmarried person of the opposite sex unrelated by blood or marriage stay overnight at their place of residence when the minor children are in their physical custody.  Should either party engage in an adult romantic relationship with any other individual, said party shall not intentionally allow said individual to be in the presence of the minor children until such time that the parties have obtained a divorce judgment.  The minor children shall at no time intentionally be in the presence of Mr. [X].  That should the minor children be unintentionally in the presence of Mr. [X], Mother has the affirmative obligations to remove the minor children from Mr. [X]'s presence."

In 2018, M and the children moved to California and Mr. X followed.  M went to court in California and asked the court to remove the Mr. X clause.

Although F was still a North Carolina resident, he appeared in court and was represented by counsel.  Counsel for both M and F stipulated (agreed) that the court should take jurisdiction of the North Carolina court order under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  The UCCJEA determines the proper jurisdictional situs court as between interested states for litigation of child custody determinations—which includes virtually any custody or visitation dispute.  Under this Act, 49 of the 50 states have agreed to maintain jurisdiction with the state that decided child custody, unless there are significant connections with the child to the new state (such as, both parents and the children have moved to the new state).

The trial court struck the first two sentences of the Provision, but denied M’s request regarding Mr. X.  M appealed.

The Appellate Court overturned the trial court, because it did not have jurisdiction in the first place to make any decisions regarding the matter.

“The family court's notation in its minutes that ‘[t]he parties agree that California has UCCJEA jurisdiction’ is insufficient to establish modification jurisdiction, because …there is no provision in the UCCJEA for jurisdiction . . . by stipulation…  Further, the parties' stipulation and the court's finding that [F] resides in North Carolina necessarily preclude any suggestion that the California court was authorized to determine it had modification jurisdiction under the UCCJEA without communicating with the North Carolina Court.”

Because F continued to reside in North Carolina, in determining which state has jurisdiction, the court asking to accept jurisdiction must confer with the original state of jurisdiction.

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