21 N.C. App. 403 | N.C. Ct. App. | 1974
The question presented is aptly posed by appellee as follows :
“Can the trial court refuse to exercise jurisdiction in a child custody action pursuant to NC GS 50-13.5 (c) (5), and thereby dismiss the Plaintiff’s action, and at the same time award the temporary custody of the children to either party . . . and award attorney’s fees. ...”
“If at any time a court of this State having jurisdiction of an action or proceeding for the custody of a minor child finds as a fact that a court in another state has assumed jurisdiction to determine the matter, and that the best interests of the child and the parties would be served by having the matter disposed of in that jurisdiction, the court of this State may, in its discretion, refuse to exercise jurisdiction, and dismiss the action or proceeding or may retain jurisdiction and enter such orders from time to time as the interest of the child may require.”
Appellant’s position is that the court may either decline to exercise jurisdiction or exercise jurisdiction and adjudicate the right of the parties but that it cannot do both.
We are of the opinion that the question as posed by the appellee should be answered in the affirmative and that the action taken by Judge Abernathy was proper. A court having jurisdiction of children located within the state surely has the inherent authority to protect those children and make such temporary orders as their best interests may require. Even without the statute, the court could have ordered that the children be placed in the temporary custody of appellee under such conditions and for such period of time as the court found to be in the best interests of the children. That order could have forecasted that the court, its jurisdiction continuing, would modify the order at a later time based upon, among other things, the actions taken by the Connecticut court.
Moreover, if under the statute the court must either undertake a plenary disposition of the question of custody at the outset or refuse to enter any order for the protection of the children, the words “at any time” in G.S. 50-13.5 (c) (5) appear to be without significance. It is more likely that the legislature understood that children could well need the temporary protection of our courts even though the best interest of the children could be served by having a more permanent disposition of the case made in another jurisdiction and thus allowed our court to decline to exercise further jurisdiction “at any time.” Furthermore, there are many cases where it does not initially appear that the best interest of the children would be served by further adjudication in another state but does so appear at later stages of the proceedings. Under appropriate circumstances, the court
Affirmed.