             MARQUES COLE JONES v. NIAH DRAKE WHIMPER

                                   No. 89A12

                             (Filed 25 January 2013)

1.    Child Custody and Support — jurisdiction — Parental Kidnapping
      Prevention Act — Uniform Child Custody Jurisdiction and
      Enforcement Act

             “[S]ubstantial compliance” with the federal Parental Kidnapping
      Prevention Act and the Uniform Child Custody Jurisdiction and Enforcement
      Act as enacted in this state requires our courts to determine whether the
      foreign state has substantially the same type of jurisdiction that we have.

2.    Child Custody and Support — communications between courts —
      Parental Kidnapping Prevention Act — Uniform Child Custody
      Jurisdiction and Enforcement Act

            N.C.G.S. § 50A-110 applies to all communications between courts
      attempting to determine jurisdiction in custody cases involving the Parental
      Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction and
      Enforcement Act.


      Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel

of the Court of Appeals, ___ N.C. App. ___, 727 S.E.2d 700 (2012), affirming an

order declining jurisdiction entered on 21 February 2011 by Judge P. Gwynett

Hilburn in District Court, Pitt County.     Heard in the Supreme Court on 5

September 2012.


      Bishop & Smith, PLLC, by Keith A. Bishop, for plaintiff-appellant.

      W. Gregory Duke for defendant-appellee.


      PER CURIAM.
                                 JONES V. WHIMPER

                                  Opinion of the Court



[1]   The holding of the majority opinion of the Court of Appeals is affirmed;

however, to the extent that the majority opinion has construed the federal Parental

Kidnapping Prevention Act (“PKPA”) and the Uniform Child-Custody Jurisdiction

and Enforcement Act (“UCCJEA”) as enacted in this state as requiring a threshold

of “substantial compliance” with these statutes, the majority opinion is vacated.

Instead, “substantial compliance” as set forth in our General Statutes requires our

courts to determine whether the foreign state has substantially the same type of

jurisdiction that we have. N.C.G.S. § 50A-206(b) (2011). As the Court of Appeals

properly noted, but misapprehended, “[i]f the court of the state having jurisdiction

substantially in accordance with [the UCCJEA] does not determine that the court of

this State is a more appropriate forum, the court of this State shall dismiss the

proceeding.” Id. Therefore, the subsection 50A-206(b) determination is limited to

whether the court of the state having jurisdiction has the same type of jurisdiction

that North Carolina has, not whether “the statutory prerequisites for determining

child custody jurisdiction were substantially complied with in” a given case. Jones

v. Whimper, __ N.C. App. __, __, 727 S.E.2d 700, 704 (2012).


[2]   In addition, that portion of the Court of Appeals’ opinion that holds that

section   50A-110   of   the   General   Statutes        only   applies   to   discretionary

communications is vacated.        We hold that section 50A-110 applies to all

communications between courts attempting to determine jurisdiction in these

circumstances. We find support in the official commentary to the section, which

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                                  JONES V. WHIMPER

                                   Opinion of the Court



states that “[t]his section emphasizes the role of judicial communications.            It

authorizes a court to communicate concerning any proceeding arising under this

Act.”   N.C.G.S. § 50A-110 official cmt. (2011) (emphasis added); see Parsons v.

Jefferson-Pilot Corp., 333 N.C. 420, 425, 426 S.E.2d 685, 689 (1993) (noting that

“the commentary to a statutory provision can be helpful in some cases in discerning

legislative intent” and that while not binding “could be given substantial weight in

our efforts to discern legislative intent”).     The commentary goes on to mention

section 206 specifically, stating that “[c]ommunications between courts is required

under Sections 204, 206, and 306, and is strongly suggested in applying Section

207.” N.C.G.S. § 50A-110 official cmt.


        Ultimately, North Carolina does not have jurisdiction here.      As the New

Jersey court declined to cede jurisdiction to North Carolina, the case remained in

New Jersey.     We therefore affirm the Court of Appeals’ affirmation of the trial

court’s order declining to exercise jurisdiction. As such, remand would serve no

purpose.


        MODIFIED AND AFFIRMED.

        Justice BEASLEY did not participate in the consideration or decision of this

case.




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