Javan Smith Memorandum Order

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK IN RE:

JOSHUA SMITH AT LAW NO.: L07-0886

MEMORANDUM ORDER

This action is before the Court upon Javan Smith’s petition seeking enforcement of a Texas Court Order awarding him custody of his son, Joshua Smith. On May 30, 2007, the Court conducted an ore tenus hearing to determine whether to enforce the Texas Court’s Order assuming jurisdiction over all matters relating to the custody of Joshua Smith. Javan Smith was present and proceeded pro se. The Carteret County (North Carolina) Department of Social Services and the Pines Treatment Center both appeared by counsel. Having maturely considered the documentary submissions and the arguments of counsel, as well as the guardian ad litem’s recommendation, the Court declines to enforce the Texas Court’s Order.

FACTUAL BACKGROUND Joshua Smith is a minor child born on November 13, 1998. During most of the period between 2002 and February 2006, Joshua lived in North Carolina with his father, Javan Smith, the petitioner in the action before the Court. Joshua’s mother, Sarah Smith, resides in New York and has not traveled to either North Carolina or Virginia to participate in any proceedings because she is financially unable to make the trip.

While Joshua and Javan Smith were residing in Onslow County, North Carolina, Joshua saw an array of therapists after he began to experience behavioral and academic difficulties at school. Early in October, 2005, one of Joshua’s therapists, Jamie Getz, noticed that Javan Smith had become quite disheveled, and any attempt to speak to Smith about Joshua was met with

anger and defensiveness. It was later learned that Javan Smith had recently broken up with his girlfriend.

After the breakup, Joshua’s therapists observed the child becoming more aggressive, irritable, and disheveled, paralleling the behavioral changes evident in his father. Throughout the course of therapy with Joshua, Getz became concerned about Javan Smith’s increasingly frequent interruption of therapeutic sessions and his refusal to obtain needed educational testing for Joshua. Despite her attempts to persuade Javan Smith that Joshua had special needs with regard to his education and mental well-being, Javan Smith continued to insist that his son did not require specialized testing and attention.

From 2005 until early 2006, the Onslow County Department of Social Services (“OCDSS”) had been investigating Javan Smith’s care of Joshua. On December, 16, 2005, OCDSS issued a case decision in the investigation, and found that Joshua was being subjected to neglect, improper care, and injurious environment while in the custody of Javan Smith.

Extensive testing revealed that Joshua was severely deficient in his educational and psychological development. Furthermore, a psychologist who evaluated Javan Smith found Smith had several mental health issues that rendered him incapable of caring for Joshua’s.

On April 18, 2006, the Emerald Isle Police Department in Carteret County, North Carolina contacted OCDSS concerning allegations that Javan Smith had physically assaulted Joshua. OCDSS referred its case to the Carteret County Department of Social Services, based upon information that Javan and Joshua Smith had moved to Carteret County.

PROCEDURAL HISTORY In response to allegations of neglect and abuse, the Carteret County General Court of Justice in North Carolina (“North Carolina Court”), on April 20, 2006, exercised emergency

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jurisdiction and granted nonsecure custody of Joshua Smith to the CCDSS. CCDSS located Joshua at the Sampson County, North Carolina home of Javan Smith’s new girlfriend and took the child into its custody after it learned Javan Smith had been arrested for communicating threats. CCDSS then filed three successive petitions concerning to Joshua’s custody: on April 21, 2006, on April 25, 2006, and on August 25, 2006.

Javan Smith made a general appearance in the North Carolina Court on April 24, 2006, at the first hearing following CCDSS’ assumption of Joshua into its custody. The North Carolina Court continued CCDSS’ non-secure custody of Joshua, finding that both Javan and Joshua Smith had sufficient minimum contacts with North Carolina. Thus, from the facts presented, the North Carolina Court had personal jurisdiction over Javan Smith, because he actually appeared and participated in the North Carolina custody proceedings.

On May 24, 2006, Javan Smith filed an action in the Eastern District of Virginia, in an attempt to remove Joshua’s custody matter to federal court. The United States District Court dismissed the action for lack of subject matter jurisdiction. Notably, Javan Smith claimed to be a resident of Texas in his federal court pleading. It is significant to note that the U.S. District’s Court Order was sent to Javan Smith’s Emerald Isle address in North Carolina, which matched the address on the original pleadings.

In August 2006, and again in October 2006, Javan Smith filed motions to dismiss the CCDSS’ petitions, claiming that he and Joshua had been Texas residents since February 2006.

On November 17, 2006, the North Carolina Court denied Javan Smith’s motions to dismiss. The Court found that Javan and Joshua Smith had lived in North Carolina for four or five years before CCDSS filed its petitions. That Court also found that while they had been in Texas from February 2006 until April 2006, the two returned to North Carolina on April 8, 2006. Indeed, the

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Court found that Javan Smith had signed a one-year lease for an Emerald Isle, North Carolina apartment shortly after his return to North Carolina, and that he had both a business and a vehicle registered in North Carolina.

The North Carolina Court found that the State of New York had made an initial custody determination regarding Joshua, granting his mother, Sarah Smith, temporary custody in a proceeding in Allegany Country, New York on January 4, 2000. After the North Carolina Court denied Javan Smith’s motion to dismiss, the State of New York declined to exercise jurisdiction over Joshua’s custody.

According to the North Carolina Court, Joshua’s mother, whose

residence is in New York and is the only remaining New York connection in this matter, has consented to North Carolina having jurisdiction.

On January 22, 2007, the District Court of Bexar County in Texas (“Texas Court”), pursuant to a petition filed by Javan Smith, entered an ex parte Temporary Restraining Order, ordering any duly authorized law enforcement officer to take Joshua from the Pines Treatment facility into custody and deliver him to Javan Smith. CCDSS was neither a named party to that action nor served with notice of the proceedings, and the Texas Court did not communicate with the North Carolina Court prior to issuing the ex parte Order. The Honorable Jerry Waddell of the North Carolina Court attempted to contact the Texas Court to discuss the issue of jurisdiction, but the Texas Court did not respond.

After learning of the ex parte Order, the North Carolina Court issued an Order requiring Javan Smith to show cause why he should not be held in contempt for attempting to circumvent the court’s valid custody Order. The North Carolina Court also forwarded a copy of the Show Cause Order to the Texas Court, with a letter describing the custody proceedings that were transpiring in North Carolina.

Thereafter, the Texas Court entered yet another Order on

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February 16, 2007, mandating that Joshua Smith be immediately surrendered and delivered to the custody of his father. The Order stated that Joshua was “being illegally restrained by the State of Virginia as a result of a Court Order entered by the Sate of North Carolina,” and that North Carolina had no jurisdiction over Joshua other that “an Emergency Order that has expired under the mandates of the UCCJEA.” In February 2007, Javan Smith petitioned this Court to enforce the Orders from the Texas Court. Mary Commander, Esquire, was appointed guardian ad litem for Joshua to represent his interests in the Courts of the Commonwealth of Virginia. The Honorable Everett A. Martin, Jr., of this Court, after consulting with the North Carolina Court and unsuccessfully attempting to consult with the Texas Court, held an evidentiary hearing on the matter. Judge Martin entered an Order on February 23, 2007 declining to enforce the Texas Court’s Orders. In that Order, Judge Martin specifically noted that “the Texas Court’s jurisdiction is doubtful…as the father and child only lived in Texas for two months.” Joshua’s guardian ad litem, Mary Commander, Esquire, later disclosed to this Court that Javan Smith did not advise Judge Martin of the North Carolina proceedings, which were later discovered through this Court’s subpoena for medical records.

In March 2007, the Judge Waddell of the North Carolina Court finally made contact with the Honorable John D. Gabriel of the Texas Court. According a Memorandum Order issued by the North Carolina Court in April 2007, Judge Gabriel agreed that North Carolina was the appropriate jurisdiction for determining custody of Joshua upon learning the facts and history surrounding the matter of Joshua’s custody, and agreed to issue an Order reflecting that conclusion. To this date, however, such an Order has not been entered. Moreover, on March 28, 2007, the Honorable Janet Littlejohn of the Texas Court issued an Order and Writ of Attachment,

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ordering Joshua to be returned to the custody of his father. Judge Littlejohn’s Order expressly held that Texas had jurisdiction over Joshua’s custody.

On April 4, 2007, following an adjudicatory hearing, Judge Waddell of the North Carolina Court entered an Order leaving Joshua in the custody of CCDSS. In an accompanying opinion, Judge Waddell found that it was in Joshua’s best interests for North Carolina to continue exercising jurisdiction over his custody. Judge Waddell based his conclusion on three factors: (1) New York’s opting not to exercise jurisdiction; (2) Joshua’s being in the continued custody of CCDSS for eleven (11) months; and (3) North Carolina’s communication on the issue of jurisdiction with the Courts in New York, Texas, and Virginia, which resulted in a “mutual conclusion that it is in Joshua’s best interests for North Carolina to exercise jurisdiction…” The April 4, 2007 Order set a combined disposition and permanency hearing on this matter for May 4, 2007, and at the hearing that Court granted continued custody to CCDSS. Despite his awareness of both the April 4, 2007 Order and the impending disposition and permanency hearing, Javan Smith once again petitioned the Texas Court for an Order granting him custody of Joshua; on May 1, 2007, Judge Littlejohn of the Texas court presided over another hearing on the matter. The transcript of this hearing indicates that Javan Smith once again was not entirely forthcoming with the Texas Court. Smith indicated to the Court that he had “never been given an opportunity to speak or call witnesses in North Carolina,” when in fact, Smith had made numerous appearances before the North Carolina Court – after being properly served notice on all occasions -- and presented evidence at two hearings. Moreover, Smith represented to the Texas Court that North Carolina “filed nothing on behalf of this child until after we filed [in Texas] and had our initial hearing and Order entered,” despite the fact that

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CCDSS had filed three separate petitions for custody in April 2006 – eight months before Texas entered its initial Order in January 2007.

In her Order of May 2, 2007, Judge Littlejohn held that Texas had established jurisdiction over Joshua’s custody, and because North Carolina’s jurisdiction was temporary, it must yield to Texas’ asserted jurisdiction. Judge Littlejohn entered the Order without consulting the North Carolina Court.

On May 9, 2007, Javan Smith petitioned this Court to enforce the Texas Orders, and an ore tenus hearing on the matter was held on May 30, 2007.

DISCUSSION The enforcement of the Texas Court’s Order depends entirely on whether Texas has jurisdiction over matters concerning Joshua’s custody.

Initially, North Carolina properly

exercised jurisdiction over Joshua’s custody through the “temporary and emergency jurisdiction” authorized by the UCCJEA. N.C. Gen. Stat. § 50A-204. See also Tex. Fam. Code § 152.20; Va. Code § 20-146.15. Through this exercise of emergency jurisdiction, CCDSS was granted nonsecure custody of Joshua. Javan Smith and the Texas Court, through its May 2, 2007 Order, both appear to concede that North Carolina did, in fact, properly exercise temporary emergency jurisdiction over Joshua’s custody.

Seeking to enforce the May 2, 2007 Texas Court Order, Javan Smith argues that Texas now has exclusive jurisdiction over Joshua’s custody. That Order asserts that Texas is Joshua’s home state, which if true, would vest Texas with jurisdiction to make a custody determination under the UCCJEA. Furthermore, the Order maintains that North Carolina is now without jurisdiction because any exercise of jurisdiction over Joshua was temporary and must now yield to Texas’s jurisdiction over Joshua’s custody.

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On the other hand, both CCDSS and Joshua’s guardian ad litem assert the Texas Orders are void and unenforceable.

CCDSS claims the UCCJEA gives North Carolina proper

jurisdiction in this matter because it had already initiated the child custody proceedings concerning Joshua’s future before the Texas Court entered its Order.

Texas has no jurisdiction in this matter. It is not Joshua’s home state. North Carolina, being properly vested with jurisdiction under the UCCJEA, never declined to exercise that jurisdiction in favor of Texas. Finally, Texas should have declined to exercise jurisdiction in this matter because of Javan Smith’s unjustifiable conduct.

A. Texas is not Joshua’s home state The UCCJEA, adopted by all fifty states, is the law concerning jurisdiction over the custody of a minor child. A state can gain initial jurisdiction in a custody matter if it is a child’s “home state.” Indeed, this appears to be the sole ground upon which the Texas Courts have relied in asserting jurisdiction over Joshua’s custody.

Texas’ adoption of the UCCJEA vests it with initial jurisdiction over custody matters, notwithstanding another state’s ability to exercise emergency jurisdiction, if …this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state…

Tex. Fam. Code § 152.201(a)(1). Both North Carolina and Virginia have adopted the same statute in all essential details. See N.C. Gen. Stat. § 50A-201(a); Va. Code § 20-146.12(a)(1).

In its May 2, 2007 Order, the Texas Court emphasized that Texas is “currently the home state” of Joshua, “has been so since February 1, 2006,” and finally, that “no other Court has established home state jurisdiction” under the UCCJEA.” Effectively, Texas bases its claim to

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jurisdiction on the assertion that it is Joshua’s home state. Certainly, if Texas were Joshua’s home state, it would have initial jurisdiction under Tex. Fam. Code § 152.201(a).

Yet, given the definition of “home state” common to every states’ adoption of the UCCJEA – including Texas -- it is difficult to comprehend how one could possibly conclude that Texas is Joshua’s home state. The UCCJEA defines “home state” as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with a parent or a person acting as a parent. A period of temporary absence of a parent or a person acting as a parent is part of the period.

Tex. Fam. Code § 152.102(7) (emphasis added).1 After living with Javan Smith in North Carolina since 2002, Joshua lived with his father in Texas from February, 2006, until April, 2006. Thus, Joshua lived with his father in Texas for three months at the most. On April 20, 2006, while living in North Carolina with Javan Smith, Joshua was taken into protective custody

by CCDSS and continuously has remained under its supervision since that day.

Clearly, Joshua has never been in Texas for any six consecutive months. Indeed, there is not even a scintilla of evidence to support a finding that Joshua was in Texas for the six months preceding Javan Smith’s request for an ex parte Order in the Texas Court. Joshua was in Texas for three months at most, and since that time has been living in either North Carolina or Virginia under the protective custody of CCDSS. It inescapably follows that Texas cannot be Joshua’s “home state,” because the UCCJEA confers “home state” status to a state only if a child has lived in that state “with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” Therefore, the Texas Court’s conclusion that Texas is Joshua’s “home state” is erroneous. The Court, then, 1

Both North Carolina and Virginia have adopted nearly identical definitions of “home state” in each jurisdiction’s version of the UCCJEA. See N.C. Gen. Stat. § 50A-102; Va. Code § 20-146.1.

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holds that all of the Texas Court Orders asserting jurisdiction on those grounds are unenforceable in this Commonwealth.

B.

North Carolina’s continued jurisdiction prevents Texas from exercising jurisdiction on other grounds

Although all of the Orders from Texas appear to assert jurisdiction solely on the basis that it is Joshua’s “home state,” the Orders also maintain that no other state – including North Carolina – has established jurisdiction under the provisions of the UCCJEA.

Under the

UCCJEA, if “no court of any other state would have jurisdiction” over Joshua’s custody, Texas may assert initial jurisdiction on essentially what is a default basis.

Tex. Fam. Code §

152.201(a)(4).2 i.

North Carolina had jurisdiction over Joshua’s custody at the inception of the Texas proceedings

When the Texas Court entered its initial, ex parte Order on January 22, 2007, North Carolina undoubtedly had initial jurisdiction over Joshua. The UCCJEA grants a state initial jurisdiction over a child’s custody, even if that state is not a child’s “home state,” if A court of another state does not have [home state] jurisdiction, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum…and: a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and b. Substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships; [or] N.C. Gen. Stat. § 50A-201(a)(2).3 North Carolina was vested with jurisdiction under N.C. Gen. Stat. § 50A-201(a)(2). No state at that point had “home state” jurisdiction over Joshua. Joshua clearly had a significant

2 3

See also N.C. Gen. Stat. § 50A-201(a)(4); Va. Code § 20-146.12(A)(4).

See also Tex. Fam. Code § 152.201(a)(2); Va. Code § 20-146.12(A)(2)

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connection with North Carolina -- it had been his place of residence for the preceding four to five years. Furthermore, he had been receiving counseling and treatment in that state until he was transferred by CCDSS to the Pines Treatment Center in Virginia. Indeed, it is that counseling and treatment, along with CCDSS’ continued supervision over Joshua’s welfare, that establish “[s]ubstantial evidence” in North Carolina “concerning the child's care, protection, training, and personal relationships.” Notably, there is no like evidence in Texas that would supports its claim of jurisdiction under this statute in its adoption of the UCCJEA. Finally, the CCDSS, for purposes of establishing jurisdiction under N.C. Gen. Stat. § 50A-201(a)(2), is clearly “a person acting as a parent.” The UCCJEA defines “a person acting as a parent” as a person, other than a parent, who: a.

Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child-custody proceeding; and b.

Has been awarded legal custody by a court or claims a right to legal custody under the law of this State.

N.C. Gen. Stat. § 50A-102(13).4 CCDSS has had both physical and legal custody over Joshua since April 20, 2007. At the time Javan Smith moved the Texas Court to grant him custody of Joshua, North Carolina possessed jurisdiction to make an initial custody determination concerning Joshua – notwithstanding its earlier exercise of temporary emergency jurisdiction.

Indeed, North Carolina exercised this initial jurisdiction by entering its Custody Order of May 4, 2007. That Order also resolved all of Javan Smith’s outstanding petitions concerning Joshua’s custody.

4

See also Tex. Fam. Code § 152.102(13); Va. Code. § 20-146.1.

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North Carolina was also vested with initial jurisdiction under N.C. Gen. Stat. § 50A201(a)(3), which states “[a]ll courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child…” Id. The only state that may possibly have had previous initial jurisdiction over Joshua was New York. After the North Carolina and New York Courts conferred on the issue of Joshua’s custody, it was decided that North Carolina was a more appropriate forum to determine custody of Joshua. Effectively, then, New York declined to exercise its jurisdiction in order to allow North Carolina – the state having a significantly closer relationship to Joshua – to determine the child’s custody.

North Carolina not only had initial jurisdiction over Joshua’s custody at the time Texas entered its first Order, but it currently has continuing and exclusive jurisdiction over Joshua’s custody. North Carolina’s adoption of the UCCJEA provides that when a state “has made a child-custody determination consistent with G.S. 50A-201,” that state “has exclusive, continuing jurisdiction over the determination…”

N.C. Gen. Stat. § 50A-202.5.5

North Carolina, as

copiously discussed, has made a valid child custody determination consistent with its jurisdiction acquired under N.C. Gen. Stat. 50A-201(2) and (3). Thus, it has continuing and exclusive jurisdiction over matters concerning Joshua’s custody. ii.

North Carolina never declined to exercise its initial jurisdiction in favor of Texas

North Carolina possessed jurisdiction to make an initial custody determination when the Texas court entered its January 22, 2007 ex parte Order, and gained continuing and exclusive jurisdiction when it exercised its validly acquired initial jurisdiction. Because it has never declined to exercise that jurisdiction in favor of Texas – which lacks any independent basis to 5

See also Tex. Fam. Code § 152.202; Va. Code § 20-146.13.

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assert jurisdiction-- Texas was and is without jurisdiction to enter any Orders relating to the custody of Joshua. Texas was not the home state of Joshua, nor was any evidence presented in Texas concerning Joshua’s well-being that could have vested Texas with jurisdiction under the UCCJEA. North Carolina, having initial jurisdiction under N.C. Gen. Stat. § 50A-201(2)and (3), and having continuing and exclusive jurisdiction under N.C. Gen. Stat. § 50A-202.6,6 did not, at any time, decline to exercise its jurisdiction in favor of Texas for any reason.

Notably, the Texas Court was, at best, reluctant to confer with the North Carolina Court to determine whether Texas was the appropriate jurisdiction for this custody matter in light of North Carolina’s exercise of jurisdiction over Joshua’s custody. Indeed, the UCCJEA both authorizes and encourages courts to communicate with each other over custody issues. Va. Code § 20-146.9. See also N.C. Gen. Stat. § 50A-110; Tex. Fam. Code § 152.110. This is especially true when a state wishes to exercise custody jurisdiction when the UCCJEA has already vested jurisdiction in another state. Texas’ own adaptation of the UCCJEA states: a court of this state may not exercise its jurisdiction under this subchapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum…

Tex. Fam. Code § 152.206. See also Va. Code § 20-146.9(A) (“[b]efore finding and exercising jurisdiction, a Court of this Commonwealth shall communicate with the court appearing to have jurisdiction in any other state concerning a proceeding arising under this act”).

The state possessing jurisdiction must decline to exercise it before the other state may make an initial custody determination or a modification of an earlier custody determination; it is difficult

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See also Tex. Fam. Code § 152.202; Va. Code § 20-146.13.

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to see how this could be done without communication between the states involved. See Va. Code § 20-146.12-14.

While it is true that Javan Smith made an extraordinary and apparently successful effort to keep the Texas court uninformed about North Carolina’s extensive involvement with Joshua, the North Carolina Court made numerous attempts, both through letters and phone calls, to inform the Texas Court of the North Carolina proceedings. Indeed, in February of 2007, Judge Martin of this Court, while considering Javan Smith’s first petition to this Court, attempted to contact the Texas Court by phone. The Texas Court has yet to respond to Judge Martin’s calls.

In March 2007, the North Carolina Court finally reached Judge Gabriel of the Texas Court by telephone.7 During a conversation with Judge Waddell, Judge Gabriel agreed that North Carolina, and not Texas, was the most appropriate jurisdiction for determining Joshua’s custody. Regrettably, Judge Gabriel never entered an Order reflecting his conclusion that North Carolina was the more appropriate jurisdiction.

Perhaps the most puzzling failure by Texas authorities to communicate with North Carolina is evidenced in the transcript of the last hearing in Texas, the result of which is the Order before the Court today. Judge Littlejohn, who was presiding over that hearing, was informed of North Carolina’s longtime involvement in the issue of Joshua’s custody and welfare.

Although Javan Smith and his attorney were far from completely forthcoming with the Texas Court, they did allude to both past and pending proceedings in North Carolina. Rather than conferring with North Carolina, Judge Littlejohn entered the Order granting Javan Smith custody, despite her knowledge of North Carolina’s custody proceedings. Had Judge Littlejohn followed the procedure for courts to confer in these types of cases as provided in UCCJEA -- an

7

The details of this conversation are reflected on page six (6) of the North Carolina court’s Juvenile Adjudication Order entered on April 2, 2007.

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overarching goal of which is to prevent the type of jurisdictional conflict that has permeated this litigation – the action at bar might never have been filed.

Moreover, it must be recognized that the provisions of the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (“PKPA”) apply to the instant case. The PKPA, like the UCCJEA, seeks to "avoid jurisdictional competition and conflict between State courts.”

Thompson v. Thompson, 484 U.S. 174, 177 (1988). The PKPA provides that the authorities of every state shall give full faith and credit to child custody determinations made in a court of another state, as long as the determination was in accordance with the provisions of the PKPA. 28 U.S.C. § 1738A. A child custody determination is consistent with the PKPA when it is essentially made in accordance with the requirements of the UCCJEA – just as the North Carolina Court did when exercising its jurisdiction acquired under N.C. Gen. Stat. § 50A201(a)(2)-(3). Compare N.C. Gen. Stat. § 50A-201(a)(2)-(3) with 28 U.S.C. § 1738A(c)(2)(B), (D). Importantly, the PKPA states: [a] court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation 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 USCS § 1738A(g).

Here, North Carolina has proper jurisdiction in this matter under the UCCJEA, and its exercise of that jurisdiction has been consistent with the requirements of the PKPA. Thus, the PKPA requires Texas to give full faith and credit to the custody determinations made by North Carolina. Moreover, because North Carolina has exercised its “jurisdiction consistently with the provisions of this section to make a custody determination,” 28 USCS § 1738A(g), the PKPA precludes Texas from exercising jurisdiction in any proceeding for a custody determination concerning Joshua. Id. 15

North Carolina, having initial jurisdiction over Joshua’s custody, has not declined to exercise that jurisdiction. Under the evidence presented to the Court – as well as to the Texas Court as shown in the transcript of that proceeding – there is simply no basis in the law for the Texas Court to exercise jurisdiction over Joshua’s custody. Because the Texas Court lacked jurisdiction, its order of May 2, 2007 is void and unenforceable.

C.

Javan Smith’s unjustifiable conduct precludes Texas from having jurisdiction over Joshua’s custody

It is clear that throughout the course of this litigation, Javan Smith has been uncooperative and deceitful. Such impertinent contempt is obvious in Smith’s behavior before the Texas Courts. Because of this behavior the UCCJEA -- as adopted by North Carolina, Virginia, and Texas -- prevents Texas from exercising jurisdiction over matters relating to the custody of Joshua Smith.

Texas’s version of the UCCJEA states: (a) Except otherwise provided in sec. 152.204 or other law of this state, if a court has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless: 1) The parents of all persons acting as parents have acquiesced in the exercise of jurisdiction; 2) A court of the state otherwise having jurisdiction…determines that this state is a more appropriate forum under section 152.207; or 3) No court of any other state would have jurisdiction….

Tex. Code Ann. § 152.208. (2007) (emphasis added).8 The language of the UCCJEA clearly instructs a court to refuse to exercise jurisdiction if such jurisdiction were acquired as a result of a petitioning party’s unjustifiable conduct.

8

See also N.C. Gen. Stat. § 50A-208; Va. Code § 20-146.19.

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In the course of deciding the case, the Court examined the Texas Court’s Order and the transcript of the most recent Texas proceeding. In addition, the Court examined the entire file of the North Carolina Court, as well as its own file. In light of all of the evidence presented, the Court finds that Javan Smith intentionally mislead the Texas Court and attempted to circumvent the valid orders of the North Carolina Court. He deliberately failed to inform the Texas Court about the North Carolina Court proceedings in order to obtain both the January 24, 2007 and May 2, 2007 Orders from the Texas Court.

Javan Smith then sought enforcement of that Order in this Court and deliberately failed to advise the Court of the North Carolina proceedings. This conduct, a replication of his action before the Texas Court, establishes that Javan Smith knowingly and intentionally refused to provide this Court with essential information about the North Carolina proceedings. This Court finds by clear and convincing evidence that Javan Smith intentionally mislead the Texas and Virginia Courts and thereby committed fraud upon both of the courts.

The North Carolina Court, in its April 2, 2007 Order, found that Javan Smith “began moving across both in-state and out-of-state jurisdictional lines after the Onslow County DSS substantiated its investigation against [Javan Smith] for lack of proper care, injurious environment, and neglect.” This conduct is not only unjustifiable; it is the exact conduct that the UCCJEA intends to prevent: The general purposes of this act are to…

1.

Avoid jurisdictional competition and conflict with courts of other states in matters of child custody that have in the past resulted in the shifting of children from state to state with harmful effects on their well-being…

2.

Deter abductions and other unilateral removals of children undertaken to obtain custody awards…

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Without a doubt, Javan Smith’s conduct conflicts with these purposes of the UCCJEA.

His

movement across jurisdictional lines in reaction to the investigation – especially his brief move to Texas – strongly suggests that Javan Smith was attempting unilaterally to remove Joshua for the purpose of obtaining a custody award. Furthermore, the attempted move of Joshua from North Carolina to Texas undoubtedly had an harmful effect on a child who was already coping with severe psychological and educational problems.

Javan Smith’s conduct throughout this litigation – especially in relation to the proceedings in Texas -- has been marked by dishonesty and a complete lack of regard for the welfare of his son. The UCCJEA mandated that Texas refuse to assert jurisdiction because of Javan Smith’s unjustifiable conduct. The same UCCJEA compels this Court to decline to enforce an order entered without jurisdiction, and the Court consequently denies Javan Smith’s petition to enforce the void Texas Order.

The Court is of the opinion that Texas lacks jurisdiction to make any determinations regarding the custody of Joshua Smith. It is not Joshua’s home state, and North Carolina, already having jurisdiction the custody of Joshua Smith, did not relinquish its jurisdiction in favor of Texas.

Accordingly, it is in the Court’s Order: (1).

That Javan Smith’s petition for enforcement of the Texas Orders concerning the Custody of Joshua Smith is denied;

(2)

That the Carteret County (North Carolina) General Court of Justice has exclusive and continuing jurisdiction over the custody of Joshua Smith;

(3)

That the Orders of the said North Carolina Court regarding the custody of Joshua Smith shall be enforced by the authorities of the Commonwealth of Virginia;

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(4)

That Javan Smith is enjoined and restrained from contesting the validity of the Orders of the said North Carolina Court concerning Joshua Smith’s custody in any Court of the Commonwealth of Virginia, unless he first obtains leave of court to fill such a challenge. If he seeks such leave of Court, he shall attach a copy of this Memorandum Order to any such request for leave to contest such North Carolina Orders in the Courts of the Commonwealth; and

(5)

The Court disposes with the necessity of endorsements of counsel and/or parties to this Order and grants any party leave to file written objections to the entry of this Order on or before July 30, 2007.

Let the Court forward certified copies of this Memorandum Order to each party, to counsel of record, to the North Carolina court, and to the Texas court.

IT IS SO ORDERED. Entered: _______________________

__________________________________ CHARLES E. POSTON, JUDGE

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