Hamdan v. Freitekh, ______ N.C. App. _______ (2020) (COA19-929).
Here in North Carolina, and across the nation, the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) sets the jurisdictional rules for how and where custody orders are enforced. The cardinal rule in custody cases has always been, and continues to be, adjudicated with the best interests of the child in mind. The UCCJEA aligns with that cardinal by preventing parents from forum shopping, instead ordering that disputes be litigated in the state with which the child and family have the closest ties.
(a) Facts: Mother Freitekh and Father Hamdan were married and living in Israel-Palestine with their three children. Father lived in Palestine while Mother lived nearby in Israel with the children. One day it became known to Father that Mother was intending to take the children and move to the United States. Father filed an action in the Shar’ia Court of Jerusalem to prevent them leaving. An order from said court was issued and prohibited Mother and the children from moving; however, by that time Mother and children had already left and eventually settled in North Carolina. Later, a custody order was issued by the Shar’ia Court, and father sought to have it enforced pursuant to the UCCJEA in Union County. The trial court found that the Shar’ia Court’s custody determination was properly registered per the UCCJEA, and a later motion to enforce the Shar’ia Court’s order was granted, ordering Mother and children to return to that court’s jurisdiction. Mother appealed.
(b) Issue: Did the trial court err because they lacked subject matter jurisdiction to register and enforce the Shar’ia Court’s custody order?
(c) Holding: Yes.
(d) Rationale: The Court of Appeals discussed that a child-custody determination, under the UCCJEA is any judgment, decree, or order that concerns custody or visitation. Furthermore, the “home-state,” the state in which the children lived with a parent for at least six consecutive months preceding a custody action, has exclusive, continuing jurisdiction over such determination. If North Carolina is the home state, determinations of other states, or countries, are enforced the same way as if it were made in North Carolina once they are registered. How does a foreign determination become registered in North Carolina? By sending two copies of the order sought to be registered to the North Carolina court, with at least one being certified by the foreign court as true. This was Father’s fatal flaw. He only provided to the trial court an Arabic copy of the foreign order without certification and a translation that was only notarized as an accurate translation. Neither copy had any indication as being certified true by the Shar’ia Court, and not even the official seal of the Shar’ia Court on the determinations could suffice. His final argument that jurisdictional issues were waived failed as well, as the Court again affirmed that questions of jurisdiction are never waivable and can be raised at any time.
Lessons and Observations:
1) The smallest details matter – here, it was simply requesting a certified copy of the original foreign order that would have moved the case forward. What if a foreign court does not have
the equivalent of “certified true?” I would submit that an affidavit with official seal or notary declaring that the document is certified true would have likely passed muster.
2) Just because your custody order was from another state, or even another country, does not mean that North Carolina courts cannot hear your custody issues. Once jurisdictional hurdles are passed, North Carolina has the ability to hear your case and enforce or modify custody the same as the issuing state’s court.
3) The most peculiar aspect of this opinion, to the author of this blog, is whether this case truly rested on a jurisdictional issue. N.C. Gen. Stat. § 50A-305 is precise under Part Three of North Carolina’s UCCJEA, a Part dedicated to the enforcement of custody orders. Nothing in the Court of Appeal’s analysis addressed the jurisdictional requirements set out in sections 50A-201 and 50A-202, concerning the home-state of the child. Instead, the Court focuses entirely on the registration component in sections 50A-305 and 50A-308, yet it arrives at the conclusion that faulty registration amounted to faulty jurisdiction.