Bill Text: NC H139 | 2013-2014 | Regular Session | Amended
Bill Title: Adopt Uniform Deployed Parent Cust/Visit. Act
Spectrum: Bipartisan Bill
Status: (Passed) 2013-04-16 - Ch. SL 2013-27 [H139 Detail]
Download: North_Carolina-2013-H139-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2013
H 1
HOUSE BILL 139
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Short Title: Adopt Uniform Deployed Parent Cust/Visit. Act. |
(Public) |
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Sponsors: |
Representatives Glazier, Stevens, Davis, and D. Ross (Primary Sponsors). For a complete list of Sponsors, refer to the North Carolina General Assembly Web Site. |
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Referred to: |
Judiciary Subcommittee C. |
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February 21, 2013
A BILL TO BE ENTITLED
AN ACT to adopt the uniform deployed parents custody and visitation act.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 50‑13.2 reads as rewritten:
"§ 50‑13.2.
Who entitled to custody; terms of custody; visitation rights of grandparents;
taking child out of State.State; consideration of parent's military
service.
(a) An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party and shall make findings accordingly. An order for custody must include findings of fact which support the determination of what is in the best interest of the child. Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent.
(b) An order for custody of a minor child may grant joint custody to the parents, exclusive custody to one person, agency, organization, or institution, or grant custody to two or more persons, agencies, organizations, or institutions. Any order for custody shall include such terms, including visitation, as will best promote the interest and welfare of the child. If the court finds that domestic violence has occurred, the court shall enter such orders that best protect the children and party who were the victims of domestic violence, in accordance with the provisions of G.S. 50B‑3(a1)(1), (2), and (3). If a party is absent or relocates with or without the children because of an act of domestic violence, the absence or relocation shall not be a factor that weighs against the party in determining custody or visitation. Absent an order of the court to the contrary, each parent shall have equal access to the records of the minor child involving the health, education, and welfare of the child.
(b1) An order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate. As used in this subsection, "grandparent" includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.
(b2) Any order for custody, including visitation, may, as a condition of such custody or visitation, require either or both parents, or any other person seeking custody or visitation, to abstain from consuming alcohol and may require submission to a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety, to verify compliance with this condition of custody or visitation. Any order pursuant to this subsection shall include an order to the monitoring provider to report any violation of the order to the court and each party to the action. Failure to comply with this condition shall be grounds for civil or criminal contempt.
(c) An order for custody of a minor child may provide for such child to be taken outside of the State, but if the order contemplates the return of the child to this State, the judge may require the person, agency, organization or institution having custody out of this State to give bond or other security conditioned upon the return of the child to this State in accordance with the order of the court.
(d) If, within a reasonable time, one parent fails to consent to adoption pursuant to Chapter 48 of the General Statutes or parental rights have not been terminated, the consent of the other consenting parent shall not be effective in an action for custody of the child.
(e) An order for custody of a minor child may provide for visitation rights by electronic communication. In granting visitation by electronic communication, the court shall consider the following:
(1) Whether electronic communication is in the best interest of the minor child.
(2) Whether equipment to communicate by electronic means is available, accessible, and affordable to the parents of the minor child.
(3) Any other factor the court deems appropriate in determining whether to grant visitation by electronic communication.
The court may set guidelines for electronic communication, including the hours in which the communication may be made, the allocation of costs between the parents in implementing electronic communication with the child, and the furnishing of access information between parents necessary to facilitate electronic communication. Electronic communication with a minor child may be used to supplement visitation with the child. Electronic communication may not be used as a replacement or substitution for custody or visitation. The amount of time electronic communication is used shall not be a factor in calculating child support or be used to justify or support relocation by the custodial parent out of the immediate area or the State. Electronic communication between the minor child and the parent may be subject to supervision as ordered by the court. As used in this subsection, "electronic communication" means contact, other than face‑to‑face contact, facilitated by electronic means, such as by telephone, electronic mail, instant messaging, video teleconferencing, wired or wireless technologies by Internet, or other medium of communication.
(f) In a proceeding for custody of a minor child of a service member, a court may not consider a parent's past deployment or possible future deployment as the only basis in determining the best interest of the child. The court may consider any significant impact on the best interest of the child regarding the parent's past or possible future deployment."
SECTION 2. G.S. 50‑13.7A is repealed.
SECTION 3. Chapter 50A of the General Statutes is amended by adding the following new Article to read:
"Article 3.
"Uniform Deployed Parents Custody and Visitation Act.
"§ 50A‑350. Short title.
This Article may be cited as the "Uniform Deployed Parents Custody and Visitation Act."
"§ 50A‑351. Definitions.
The following definitions apply in this Article:
(1) Adult. – An individual who is at least 18 years of age or an emancipated minor.
(2) Caretaking authority. – The right to live with and care for a child on a day‑to‑day basis, including physical custody, parenting time, right to access, and visitation.
(3) Child. – An (i) unemancipated individual who has not attained 18 years of age or (ii) adult son or daughter by birth or adoption who is the subject of an existing court order concerning custodial responsibility.
(4) Close and substantial relationship. – A relationship in which a significant bond exists between a child and a nonparent.
(5) Court. – An entity authorized under the laws of this State to establish, enforce, or modify a decision regarding custodial responsibility.
(6) Custodial responsibility. – A comprehensive term that includes any and all powers and duties relating to caretaking authority and decision‑making authority for a child. The term includes custody, physical custody, legal custody, parenting time, right to access, visitation, and the authority to designate limited contact with a child.
(7) Decision‑making authority. – The power to make important decisions regarding a child, including decisions regarding the child's education, religious training, health care, extracurricular activities, and travel. The term does not include day‑to‑day decisions that necessarily accompany a grant of caretaking authority.
(8) Deploying parent. – A service member, who is deployed or has been notified of impending deployment, and is (i) a parent of a child or (ii) an individual other than a parent who has custodial responsibility of a child.
(9) Deployment. – The movement or mobilization of a service member to a location for more than 90 days, but less than 18 months, pursuant to an official order that (i) is designated as unaccompanied; (ii) does not authorize dependent travel; or (iii) otherwise does not permit the movement of family members to that location.
(10) Family member. – A sibling, aunt, uncle, cousin, stepparent, or grandparent of a child, and an individual recognized to be in a familial relationship with a child.
(11) Limited contact. – The opportunity for a nonparent to visit with a child for a limited period of time. The term includes authority to take the child to a place other than the residence of the child.
(12) Nonparent. – An individual other than a deploying parent or other parent.
(13) Other parent. – An individual who, in common with a deploying parent, is (i) the parent of a child or (ii) an individual other than a parent with custodial responsibility of a child.
(14) Record. – Information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(15) Return from deployment. – The conclusion of a service member's deployment as specified in uniformed service orders.
(16) Service member. – A member of a uniformed service.
(17) State. – A state of the United States, the District of Columbia, Puerto Rico, and the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(18) Uniformed service. – Service which includes (i) the active and reserve components of the Army, Navy, Air Force, Marine Corps, or Coast Guard of the United States; (ii) the Merchant Marine, the commissioned corps of the Public Health Service, or the commissioned corps of the National Oceanic and Atmospheric Administration of the United States; or (iii) the National Guard.
"§ 50A‑352. Remedies for noncompliance.
In addition to other relief provided under the laws of this State, if a court finds that a party to a proceeding under this Article has acted in bad faith or intentionally failed to comply with the requirements of this Article or a court order issued under this Article, the court may assess reasonable attorneys' fees and costs against the opposing party and order other appropriate relief.
"§ 50A‑353. Jurisdiction.
(a) A court may issue an order regarding custodial responsibility under this Article only if the court has jurisdiction pursuant to Uniform Child‑Custody Jurisdiction and Enforcement Act (UCCJEA) under Article 2 of this Chapter. If the court has issued a temporary order regarding custodial responsibility pursuant to Part 3 of this Article, for purposes of the UCCJEA, the residence of the deploying parent is not changed by reason of the deployment during the deployment.
(b) If a court has issued a permanent order regarding custodial responsibility before notice of deployment and the parents modify that order temporarily by agreement pursuant to Part 2 of this Article, for purposes of the UCCJEA, the residence of the deploying parent is not changed by reason of the deployment.
(c) If a court in another state has issued a temporary order regarding custodial responsibility as a result of impending or current deployment, for purposes of the UCCJEA, the residence of the deploying parent is not changed by reason of the deployment.
(d) This section does not prohibit the exercise of temporary emergency jurisdiction by a court under the UCCJEA.
"§ 50A‑354. Notice required of deploying parent.
(a) Except as provided in subsections (c) and (d) of this section, a deploying parent shall, in a record, notify the other parent of a pending deployment not later than seven days after receiving notice of deployment unless the deploying parent is reasonably prevented from notifying the other parent by the circumstances of service. If the circumstances of service prevent notification within seven days, the notification shall be made as soon as reasonably possible thereafter.
(b) Except as provided in subsections (c) and (d) of this section, each parent shall, in a record, provide the other parent with a plan for fulfilling that parent's share of custodial responsibility during deployment as soon as reasonably possible after receiving notice of deployment under subsection (a) of this section.
(c) If an existing court order prohibits disclosure of the address or contact information of the other parent, a notification of deployment under subsection (a) of this section, or notification of a plan for custodial responsibility during deployment under subsection (b) of this section, may be made only to the issuing court. If the address of the other parent is available to the issuing court, the court shall forward the notification to the other parent. The court shall keep confidential the address or contact information of the other parent.
(d) Notice in a record is not required if the parents are living in the same residence and there is actual notice of the deployment or plan.
(e) In a proceeding regarding custodial responsibility between parents, a court may consider the reasonableness of a parent's efforts to comply with this section.
"§ 50A‑355. Notification required for change of address.
(a) Except as otherwise provided in subsection (b) of this section, an individual to whom custodial responsibility has been assigned or granted during deployment under Part 2 or Part 3 of this Article shall notify the deploying parent and any other individual with custodial responsibility of any change of mailing address or residence until the assignment or grant is terminated. The individual shall provide the notice to any court that has issued an existing custody or child support order concerning the child.
(b) If an existing court order prohibits disclosure of the address or contact information of an individual to whom custodial responsibility has been assigned or granted, a notification of change of mailing address or residence under subsection (a) of this section may be made only to the court that issued the order. The court shall keep confidential the mailing address or residence of the individual to whom custodial responsibility has been assigned or granted.
"Part 2. Agreement Addressing Custodial Responsibility During Deployment.
"§ 50A‑356. Form of agreement.
(a) The parents of a child may enter into a temporary agreement granting custodial responsibility during deployment.
(b) An agreement under subsection (a) of this section shall be (i) in writing and (ii) signed by both parents or any nonparent to whom custodial responsibility is granted.
(c) An agreement under subsection (a) of this section may include the following:
(1) To the extent feasible, identify the destination, duration, and conditions of the deployment that is the basis for the agreement.
(2) Specify the allocation of caretaking authority among the deploying parent, the other parent, and any nonparent, if applicable.
(3) Specify any decision‑making authority that accompanies a grant of caretaking authority.
(4) Specify any grant of limited contact to a nonparent.
(5) If the agreement shares custodial responsibility between the other parent and a nonparent, or between two nonparents, provide a process to resolve any dispute that may arise.
(6) Specify (i) the frequency, duration, and means, including electronic means, by which the deploying parent will have contact with the child; (ii) any role to be played by the other parent in facilitating the contact; and (iii) the allocation of any costs of communications.
(7) Specify the contact between the deploying parent and child during the time the deploying parent is on leave or is otherwise available.
(8) Acknowledge that any party's existing child‑support obligation cannot be modified by the agreement, and that changing the terms of the obligation during deployment requires modification in the appropriate court.
(9) Provide that the agreement terminates following the deploying parent's return from deployment according to the procedures under Part 4 of this Article.
(10) If the agreement must be filed pursuant to G.S. 50A‑360, specify which parent shall file the agreement.
"§ 50A‑357. Nature of authority created by agreement.
(b) A nonparent given caretaking authority, decision‑making authority, or limited contact by an agreement under this Part has standing to enforce the agreement until it has been modified pursuant to an agreement of the parents under G.S. 50A‑358 or terminated under Part 4 of this Article or by court order.
"§ 50A‑358. Modification of agreement.
The parents may by mutual consent modify an agreement regarding custodial responsibility made pursuant to this Part. If an agreement made under this subsection is modified before deployment of a deploying parent, the modification shall be in writing and signed by both parents and any nonparent who will exercise custodial responsibility under the modified agreement. If an agreement made under this section is modified during deployment of a deploying parent, the modification shall be agreed to, in a record, by both parents and any nonparent who will exercise custodial responsibility under the modified agreement.
"§ 50A‑359. Power of attorney.
If no other parent possesses custodial responsibility or if an existing court order prohibits contact between the child and the other parent, a deploying parent, by power of attorney, may delegate all or part of custodial responsibility to an adult nonparent for the period of deployment. The power of attorney is revocable by the deploying parent through a revocation of the power of attorney signed by the deploying parent.
"§ 50A‑360. Filing agreement or power of attorney with court.
An agreement or power of attorney created pursuant to this Part shall be filed within a reasonable period of time with any court that has entered an existing order on custodial responsibility or child support concerning the child. The case number and heading of the existing case concerning custodial responsibility or child support shall be provided to the court with the agreement or power of attorney.
"Part 3. Judicial Procedure for Granting Custodial Responsibility During Deployment.
"§ 50A‑361. Proceeding for temporary custody order.
(a) After a deploying parent receives notice of deployment and during the deployment, a court may issue a temporary order granting custodial responsibility unless prohibited by the Servicemembers Civil Relief Act, 50 U.S.C. §§ 521‑522. A court may not issue a permanent order granting custodial responsibility in the absence of the deploying parent without the consent of the deploying parent.
(b) At any time after a deploying parent receives notice of deployment, either parent may file a motion regarding custodial responsibility of a child during deployment. The motion shall be filed in an existing proceeding for custodial responsibility of the child with jurisdiction under Part 1 of this Article or, if there is no existing proceeding in a court with jurisdiction under Part 1 of this Article, in a new action for granting custodial responsibility during deployment.
"§ 50A‑362. Expedited hearing.
The court shall conduct an expedited hearing if a motion to grant custodial responsibility is filed before a deploying parent deploys.
"§ 50A‑363. Testimony by electronic means.
In a proceeding brought under this Part, a party or witness who is not reasonably available to appear personally may appear and provide testimony and present evidence by electronic means unless the court finds good cause to require a personal appearance.
"§ 50A‑364. Effect of prior judicial decree or agreement.
In a proceeding for a grant of custodial responsibility pursuant to this Part, the following shall apply:
(1) A prior judicial order designating custodial responsibility of a child in the event of deployment is binding on the court unless the circumstances require modifying a judicial order regarding custodial responsibility.
(2) The court shall enforce a prior written agreement between the parents for designating custodial responsibility of a child in the event of deployment, including a prior written agreement executed under Part 2 of this Article, unless the court finds the agreement contrary to the best interest of the child.
"§ 50A‑365. Grant of caretaking or decision‑making authority to nonparent.
(a) In accordance with the laws of this State and on the motion of a deploying parent, a court may grant caretaking authority of a child to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship if it is in the best interest of the child.
(b) Unless the grant of caretaking authority to a nonparent under subsection (a) of this section is agreed to by the other parent, the grant is limited to an amount of time not greater than (i) the time granted to the deploying parent in an existing permanent custody order, except that the court may add unusual travel time necessary to transport the child or (ii) in the absence of an existing permanent custody order, the amount of time that the deploying parent habitually cared for the child before being notified of deployment, except that the court may add unusual travel time necessary to transport the child.
(c) A court may grant part of the deploying parent's decision‑making authority for a child to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship if the deploying parent is unable to exercise that authority. When a court grants the authority to a nonparent, the court shall specify the decision‑making powers that will and will not be granted, including applicable health, educational, and religious decisions.
(d) Any nonparent to whom caretaking authority or decision‑making authority is granted shall be made a party to the action until the grant of caretaking authority or decision‑making authority is terminated.
"§ 50A‑366. Grant of limited contact.
(a) In accordance with laws of this State and on motion of a deploying parent, a court shall grant limited contact with a child to a nonparent who is either a family member of the child or an individual with whom the child has a close and substantial relationship, unless the court finds that the contact would be contrary to the best interest of the child.
(b) Any nonparent who is granted limited contact shall be made a party to the action until the grant of limited contact is terminated.
"§ 50A‑367. Nature of authority created by order.
(a) A grant made pursuant to this Part is temporary and terminates pursuant to Part 4 of this Article following the return from deployment of the deployed parent, unless the grant has been terminated before that time by court order. The grant does not create an independent, continuing right to caretaking authority, decision‑making authority, or limited contact in an individual to whom it is granted.
(b) A nonparent granted caretaking authority, decision‑making authority, or limited contact under this Part has standing to enforce the grant until it is terminated under Part 4 of this Article or by court order.
(c) Any nonparent made a party because of a grant of caretaking authority, decision‑making authority, or limited contact shall have no continuing right to party status after the grant of caretaking authority, decision‑making authority, or limited contact is terminated pursuant to Part 4 of this Article or by court order.
"§ 50A‑368. Content of temporary custody order.
(a) An order granting custodial responsibility under this Part shall (i) designate the order as temporary and (ii) identify to the extent feasible the destination, duration, and conditions of the deployment.
(b) If applicable, a temporary order for custodial responsibility shall comply with each of the following:
(1) Specify the allocation of caretaking authority, decision‑making authority, or limited contact among the deploying parent, the other parent, and any nonparent.
(2) If the order divides caretaking or decision‑making authority between individuals, or grants caretaking authority to one individual and limited contact to another, provide a process to resolve any significant dispute that may arise.
(3) Provide for liberal communication between the deploying parent and the child during deployment, including through electronic means, unless contrary to the best interest of the child, and allocate any costs of communications.
(4) Provide for liberal contact between the deploying parent and the child during the time the deploying parent is on leave or is otherwise available, unless contrary to the best interest of the child.
(5) Provide for reasonable contact between the deploying parent and the child following return from deployment until the temporary order is terminated, which may include more time than the deploying parent spent with the child before entry of the temporary order.
(6) Provide that the order will terminate following return from deployment according to the procedures under Part 4 of this Article.
"§ 50A‑369. Order for child support.
If a court has issued an order providing for grant of caretaking authority under this Part, or an agreement granting caretaking authority has been executed under Part 2 of this Article, the court may enter a temporary order for child support consistent with the laws of this State regarding child support if the court has jurisdiction under the Uniform Interstate Family Support Act under Chapter 52C of the General Statutes.
"§ 50A‑370. Modifying or terminating assignment or grant of custodial responsibility to nonparent.
(a) Except for an order in accordance with G.S. 50A‑364 or as otherwise provided in subsection (b) of this section, and consistent with the Servicemembers Civil Relief Act, 50 U.S.C. §§ 521‑522, on motion of a deploying or other parent or any nonparent to whom caretaking authority, decision‑making authority, or limited contact has been granted, the court may modify or terminate a grant of caretaking authority, decision‑making authority, or limited contact made pursuant to this Article if the modification or termination is consistent with this Part and the court finds it is in the best interest of the child. Any modification shall be temporary and terminates following the conclusion of deployment of the deployed parent according to the procedures under Part 4 of this Article, unless the grant has been terminated before that time by court order.
(b) On motion of a deploying parent, the court shall terminate a grant of limited contact.
"Part 4. Return From Deployment.
"§ 50A‑371. Procedure for terminating temporary grant of custodial responsibility established by agreement.
(a) At any time following return from deployment, a temporary agreement granting custodial responsibility under Part 2 of this Article may be terminated by an agreement to terminate signed by the deploying parent and the other parent.
(b) The temporary agreement granting custodial responsibility terminates if (i) the agreement to terminate specifies a date for termination or (ii) the agreement to terminate does not specify a date, on the date the agreement to terminate is signed by both parents.
(c) In the absence of an agreement to terminate, the temporary agreement granting custodial responsibility terminates 60 days from the date of one of the following:
(1) The date the deploying parent gives notice to the other parent that the deploying parent has returned from deployment.
(2) The date stated in an order terminating the temporary grant of custodial responsibility.
(3) The death of the deploying parent.
(d) If the temporary agreement granting custodial responsibility was filed with a court pursuant to G.S. 50A‑360, an agreement to terminate the temporary agreement shall also be filed with that court within a reasonable period of time after the signing of the agreement. The case number and heading of the existing custodial responsibility or child support case shall be provided to the court with the agreement to terminate.
"§ 50A‑372. Consent procedure for terminating temporary grant of custodial responsibility established by court order.
At any time following return from deployment, the deploying parent and the other parent may file with the court an agreement to terminate a temporary order for custodial responsibility issued under Part 3 of this Article. After an agreement has been filed, the court shall issue an order terminating the temporary order on the date specified in the agreement. If no date is specified, the court shall issue the order immediately.
"§ 50A‑373. Visitation before termination of temporary grant of custodial responsibility.
After a deploying parent returns from deployment and until a temporary agreement or order for custodial responsibility established under Part 2 or Part 3 of this Article is terminated, the court shall enter a temporary order granting the deploying parent reasonable contact with the child unless it is contrary to the best interest of the child. The court shall enter a temporary order granting contact under this section even if the time exceeds the time the deploying parent spent with the child before deployment.
"§ 50A‑374. Termination by operation of law of temporary grant of custodial responsibility established by court order.
(a) A temporary order for custodial responsibility issued under Part 3 of this Article shall terminate, if no agreement between the parties to terminate a temporary order for custodial responsibility has been filed, 60 days from (i) the date the deploying parent gives notice of having returned from deployment to the other parent or any nonparent granted custodial responsibility or (ii) the death of the deploying parent.
(b) Any proceedings seeking to terminate or prevent termination of a temporary order for custodial responsibility are governed by laws of this State.
"Part 5. Miscellaneous Provisions.
"§ 50A‑375. Uniformity of application and construction.
In applying and construing this Article, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
"§ 50A‑376. Relation to Electronic Signatures in Global and National Commerce Act.
This Article modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001, et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. § 7003(b)."
SECTION 4. Nothing in Article 3 of Chapter 50A of the General Statutes, enacted in Section 3 of this act, shall affect the validity of a temporary court order concerning custodial responsibility during deployment entered before the effective date of this act.
SECTION 5. The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comment to the Uniform Deployed Parents Custody and Visitation Act as the Revisor may deem appropriate.
SECTION 6. This act is effective when it becomes law.
