Multi-state child custody actions often get filed where it is unclear if, and how, the state where the action is filed has subject matter jurisdiction to determine child custody. In defending such actions the reflexive response is to file a motion to dismiss due to lack of subject matter jurisdiction pursuant to Rule 12(b)(1), SCRCP.
However, typically, such defective child custody pleadings lack the required verification of basic facts regarding the child’s residence the past five years. S.C. Code § 63-15-346(A) of South Carolina’s version of the Uniform Interstate Child Custody Jurisdiction and Enforcement Act (UCCJEA) lists information that is required to be submitted in an affidavit or in the initial pleading:
(A) Subject to local law providing for the confidentiality of procedures, addresses, and other identifying information, in a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
(1) has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;
(2) knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
(3) knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
Since resolution of subject matter jurisdiction for child custody often turns on where the parties and the child have been living the past few years, the information required by § 63-15-346(A) is vital to a subject matter jurisdiction analysis. While one could file a motion to dismiss without the Plaintiff first filing the required pleading or affidavit, doing so allows the Plaintiff the first opportunity to raise factual problems in the Defendant’s submission. That is because when filing a motion to dismiss for lack of subject matter jurisdiction the Defendant will be required to file an affidavit and supporting evidence stating the basis upon which he or she claims jurisdiction is improper. Rule 6(d), SCRCP. If one doesn’t demand the § 63-15-346(A) filing before one files a motion to dismiss, one grants the Plaintiff the first opportunity to challenge the other party’s factual accuracy regarding the child’s and parties’ residential history.
Thus, rather than filing a motion to dismiss, the Defendant may file a motion to stay the proceedings until the Plaintiff files the required pleading or affidavit. § 63-15-346(B) specifically authorizes this:
(B) If the information required by subsection (A) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.
Rather than guess at the Plaintiff’s basis for claiming subject matter jurisdiction is proper, one can file a § 63-15-346(B) motion and demand this information before filing a 12(b)(1) motion. Doing so gives the Defendant the procedural advantage of learning the basis of the Plaintiff’s claim of jurisdiction before revealing why the Defendant believes such jurisdiction is improper.