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aprillove
Pileated woodpecker
Joined: Dec 31, 2005
Posts: 178
Location: indiana
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 Posted: Tue Jun 17, 2008 2:00 pm Post subject: signed order for joshua smith (autistic child) and update |
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i wanted to paste a copy of the signed order in this case. it won't look pretty, but i'm not computer savy and don't know how to fix it. but i want people to realize that this is REAL.
jay has been working nonstop on this. he is exhausted, but he keeps fighting on to get this out in the media.
this case is very important for autism. it also should help other parents in similar nightmare situations with cps.
another reason this is very important is because it's a writ of habeaus corpus. i don't undersand the law like jay does, but here is my layman's understanding. the supreme court just granted the gitmo prisoners the right to habeaus corpus and they are not us citizens. friday's court was a writ of habeaus corpus. north carolina was demanded to bring josh to court so that he could have his right to be heard in court. north carolina REFUSED!! josh is a us citizen and his constitutional rights are being violated. right now, the gitmo prisoners have more rights than he does. that's my layman's understanding of it all.
anyway, we are still working feverishly to get this to the public/media. north carolina has made no attempt to bring josh back. we fear that without media and public outcry, they will yet again defy the law.
we did get a call this morning from kens 5 saying they are getting calls from other media to verify the story, so we are hoping this will break into national/'international coverage soon.
if you can send this on to others, or even view and post comments on the youtube so that the video stays in the top rankings, it would be a massive help for us.
thanks for your support.
april
IIII m'~~MIIIII
2008CI08302 -0166
CAUSE NO. 2008-CI-08302
IN THE INTEREST OF JOSHUA SMITH A CHILD
) ) ) ) )
IN THE DISTRICT COURT OF BEXAR COUNTY, TEXAS 166th JUDICIAL DISTRICT
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS AND TEMPORARY ORDERS
On this the 13th day ofJune, 2008, the Petition For Writ ofHabeas Corpus was heard by the
Court.
Appearance
Petitioner, JAVAN SMITH, appeared in person, with counsel, and announced ready.
Respondent, the North Carolina Carteret County Department of Social Services, did not
appear, although duly served with legal process by and through its registered agent for service of
process, David Adkinson.
II """.
Child
The Court finds the following child is the subject ofthis cause of action:
NAME: BIRTHDATE: HOME STATE:
JOSHUA WILLIAM SMITH, Male November 13,1998 Texas
JAVAN SMITH is the Father and Sole Managing Conservator ofthe above-refcl~ncejchild.
Jurisdiction
The Court finds that it has continuing jurisdiction over the parties, the minor child,-arrd the
-
,::: ~I;
subj ect of this suit, by virtue of a final order entered on May 2, 2007 by the 150,h Judicial District
Court of Bexar County, Texas, in Cause Number 2007-CI-00854. (A copy is attached hereto for reference, and incorporated herein for all purposes).
Findings
On June 13,2008, the Court found that Director David Adkinson filed a general appearance in this cause of action, on behalf of the North Carolina Carteret County Department of Social Services; and, that Carteret County Department of Social Services has submitted to the jurisdiction of this Court.
The Court further finds that JOSHUA WILLIAM SMITH is a special needs child, being neglected and abused by the North Carolina Carteret County Department of Social Services, who is putting the child's safety and well-being at risk.
The Court further finds that North Carolina issued an illegal Emergency Temporary Order under the UCCJEA, even though JOSHUA WILLIAM SMITH was not present in that state. The Court further finds that North Carolina removed JOSHUA WILLIAM SMITH, the subject minor child, from the State of North Carolina, and illegally placed him in a facility in the
"",
II
State of Virginia, without legal authority.
·:U:
Habeas Order
The Court finds that JAVAN SMITH, Petitioner herein, is the person entitled by law and parentage, to have possession ofJOSHUA WILLIAM SMITH; and, that North Carolina's Carteret County Department of Social Services has illegally confined and restrained said child.
IT IS THEREFORE ORDERED that JAVAN SMITH's Petitio_n For Writ ofJ-l.?beas Co..rrms is GRANTED.
Temporary Orders
IT IS ORDERED that the North Carolina Carteret County Department of Social Services work with the Texas Department ofRegulatory and Protective Services in Bexar County, Texas, to have the subject child transferred to the state of Texas.
IT IS ORDERED that JAVAN SMITH shaH be solely responsible for all costs involved in the transfer ofJOSHUA WILLIAM SMITH to the state of Texas. IT IS FURTHER ORDERED that JOSHUA WILLIAM SMITH be transferred to the State of Texas on or before June 25,2008.
Writ ofAttachment
IT IS ORDERED that the Clerk of this Court immediately issue a writ of attachment commanding any duly authorized law enforcement agent to take the body of JOSHUA WILLIAM SMITH into protective custody, and to deliver said child safely into the possession of the Texas Department of Regulatory and Protective Services in Bexar County, Texas
In the event North Carolina Carteret County Social Services fails to cooperate in the
!I II:::;:
surrender of JOSHUA WILLIAM SMITH to the Texas Department of Regulatory and Protective
"""
Services in Bexar County, Texas, any agent with the Federal Bureau of Investigation and/or U.S. Marshall's office and/or District Attorney, is COMMANDED to take JOSHUA WILLIAM SMITH into protective custody and to deliver him safely to a duly authorized representat~'!e'of the Texas
DepartmentofRegulatoryand Protective Servicesin BexarCounty,Texas.._. IT IS FURTHER ORDERED that all costs of transportation and transfer shall be the sole responsibility of JAVAN SMITH.
SIGNED ON __L1-:f"""lk=t"""'L""-<~rG~----,/1J,----",:Z_)g_' _
iI ~
JUDGE
PRESIDING
APPROVED AS TO FORM ONLY: APPROVED AS TO F RM AND CONTENT:
x=7~~
~~u-JAV
State Bar No. 11048800 2420 McCullough Ave., No. 122 San Antonio, Texas 78212
(210)
735-4910 -OFC
(210)
785-0779 -FAX
_________________
April Love - Author
"Gift of the Morning"
"Secrets of a City Bench" |
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scarlet52698
Tufted Titmouse
Joined: Jun 14, 2008
Posts: 39
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| Posted: Wed Jun 18, 2008 1:17 am Post subject: |
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April,
I live in NC and have emailed our local paper and sent the story to all my email contacts in NC to do the same. I will also shoot off some emails to our local reps as well. Maybe getting some people here to ask questions will help some too.
Hope he gets his boy back soon! |
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aprillove
Pileated woodpecker
Joined: Dec 31, 2005
Posts: 178
Location: indiana
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| Posted: Wed Jun 18, 2008 2:16 am Post subject: |
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i can't thank you enough for this!!!! i'll let jay knows when he wakes up, but i know he'll be thrilled. thank you!!!! hopefully we'll get josh home very soon.
april
_________________
April Love - Author
"Gift of the Morning"
"Secrets of a City Bench" |
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Katy_North
Hummingbird
Joined: Jul 08, 2008
Posts: 20
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| Posted: Tue Jul 08, 2008 12:15 pm Post subject: |
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The truth is that Javan Smith is a fraud! He fled North Carolina to prevent his son from being taken from him because of his own neglect by North Carolina DSS and came to San Antonio, Texas. He went back to North Carolina after a two month stay in San Antonio, not on vacation but to visit his girlfriend and was arrested for “communicating threats” it was then that North Carolina DSS became aware and took his son.
Javan has made elaborate claims of being in the IT business, ownership of a $350,000 house…….None of that is true! April Love (his mistress of propaganda) only states things that will give Javan public appeal and support, she is just as blind as the others who have jumped on the Javan band wagon of support. I do hope that this goes national because unlike other news agencies they do RESEARCH! They will find the skeletons in Javan’s closet and he will be eaten alive and exposed for the liar and fraud that he is! Parul Joshi did her research and wrote another story - Please check out Parul's updated story WNCT Channel 9 - Jun 25, 2008 ( there are two storys on the site so make sure it's the June 25th updated story ) |
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findingthetruth
Tufted Titmouse
Joined: Jul 01, 2008
Posts: 31
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| Posted: Tue Jul 08, 2008 12:58 pm Post subject: Reply to Katy North |
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How Astute! You must do your own research as well.
We must help the public open their eyes  to the truth of this story.
You seem to have a good perspective on the real story. Javan Smith has told many tall tales in his scenario of the situation concerning his son Joshua. Javan Smith has appealed to both NC and VA to get his son back using different tactics with each one because he is smart enough to know what chances he might have by utilizing different aspects of the law to his benefit if he can keep the truth at bay. The problem is that a public outcry results in public involvement and investigation. Javan's story has a paper trail; all any one needs to do is follow that trail and the truth will be known.
Javan was a NC resident for several years and was under investigation by Onslow County Social Services prior to Carteret Counties' subsequent involvement. The case has a longer history than Javan wants the public to know. His final attempt to date to regain custody of his son is his claim of jurisdiction and that is the only way that he can utilize the UCCJEA. Because NC always had jurisdiction, Texas has no jurisdiction. Javan has done everything in his power to deny his NC residence at the time that social services took his son, but NC did have jurisdiction. Javan officially moved to Texas in body and person after around June 20 2006, last year. He has only been a Texas resident for one year.
If there is any way possible, Javan needs to be prosecuted for his attempts to defraud the judicial system of our wonderful states and of the federal government if he is found to have misrepresented the facts in this case, which he has. He claims that NC has cost him financially. Well, in deliberate lies and deception Javan has created debt to the states involved and to the federal government in his goal of getting them all involved in his scheme to get his son from NC.
The states involved and our federal government should make an example of people like Javan Smith who try to manipulate our judicial systems as Javan Smith has done. |
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Katy_North
Hummingbird
Joined: Jul 08, 2008
Posts: 20
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| Posted: Tue Jul 08, 2008 2:38 pm Post subject: Research pays off |
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| I suggest to others to do their research before jumping on the propaganda band wagon of Javan Smith & April Love – I agree that he has wasted the time of the court systems in NC and Texas ( lawyers will take your money even if it is a losing battle ) and that he should be prosecuted to the fullest extent of the law! |
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catspurr
Phoenix
Joined: Jan 16, 2008
Posts: 781
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| Posted: Tue Jul 08, 2008 2:43 pm Post subject: |
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Sorry but, I'm on April's side.
I think Javan must have made some enemies. You can't even elaborate on what a supposed horrible man he is. Horrible enough to have his son taken away? Sorry but if you know the other side of the story why not just say it because if what you wrote WAS the other side of the story...that is no excuse to have someone's child taken away. |
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findingthetruth
Tufted Titmouse
Joined: Jul 01, 2008
Posts: 31
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| Posted: Tue Jul 08, 2008 4:05 pm Post subject: |
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Javan and Joshua Smith's case was investigated by both Onslow County Social Services and Carteret County Social Services for abuse and neglect due to several reports to this effect received by both county agencies. Joshua was taken into protective custody after the arrest of Javan Smith. April does not know one thing about this case. She was not around at its inception nor has she any first hand knowledge beyond the Texas Writ of Habeas Corpus. She is not a primary source or even a viable secondary source of information regarding this case which in Texas is only about Jurisdiction. The neglect case has already been decided in NC, THE PROPER STATE OF JURISDICTION.
Read the second article that Katy North makes note of written by Parul Joshi. |
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Katy_North
Hummingbird
Joined: Jul 08, 2008
Posts: 20
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| Posted: Tue Jul 08, 2008 5:12 pm Post subject: |
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The information is out there on Javan Smith all you have to Google it under Javan Smith / Joshua Smith and reaearch it. Parul Joshi wrote a news story ( June 18th ) but soon updated it ( June 25th ) after doing some research into the life of Javan Smith ( Javan claims it was a fake ) but Parul checked with the courts of Virgina and it is a legimate document.
Parul Joshi News Story June 25th 2008
A custody battle between our state and Texas continues tonight. Last week, we told you about a father in Texas who's been trying to get his son back from Carteret County Department of Social Services, for about two years. Earlier this month a Texas judge issued a Writ of Habeas Corpus ordering DSS to return Joshua to Texas Child Protective Services. They had until today to do that.
Carteret County Department of Social Services Director David Atkinson sent us a signed and certified version of a Virginia court order. We called the courts to make sure it was legitimate and it is.
It's an order from the Circuit Court of Norfolk that says the Carteret County General Court of Justice has exclusive and continuing jurisdiction over Joshua.
It also says that Onslow County DSS before turning the case over to Carteret County found that Joshua was neglected when he was with Smith and that a psychologist’s evaluation found Smith had “several mental health issues”.
The order paints a picture of Smith as an unfit father who had hurt his son.
David Atkinson says "If we believe that the judge in that case included nothing but the facts you have to conclude from that somebody isn't representing the truth either a judge in Virginia or an in individual in Texas."
Javan Smith is that individual in Texas he disputes all of those claims, points out he is the Vice President of the San Antonio autism society and that he always took good care of Joshua.
Virginia's involvement stems from the fact that Carteret County DSS moved Joshua to a residential treatment facility there. So smith tried to get custody of his son from Virginia.
The Virginia judge ruled that Virginia didn't have jurisdiction to give up Joshua essentially keeping him in North Carolina custody indefinitely.
Meanwhile the “Writ of Habeas Corpus” issued by a Texas judge earlier this month still stands according to Javan Smith's counsel.
Now that June 25th has arrived and Joshua Smith has not been returned to Texas Child Protective Services, the FBI is involved.
Javan Smith says, "I'm really happy they're looking into this it means to me my son's going to be safe soon."
I spoke with an FBI representative who says while the Bureau does not have an official investigation going on right now the FBI in San Antonio is making inquiries on behalf of Mr. Smith in an effort to resolve this issue in the best interest of the child.
Meanwhile two states have two very different views on where a little boy should be and a father determined to bring his son home.
Nine on your side will continue to follow this story, and let you know of any developments.
Last edited by Katy_North on Wed Jul 09, 2008 12:46 am; edited 1 time in total |
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Katy_North
Hummingbird
Joined: Jul 08, 2008
Posts: 20
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| Posted: Tue Jul 08, 2008 5:20 pm Post subject: |
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This is the legimate document that Parul Joshi researched in her news story
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
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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.
10
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 See also N.C. Gen. Stat. § 50A-201(a)(4); Va. Code § 20-146.12(A)(4).
3 See also Tex. Fam. Code § 152.201(a)(2); Va. Code § 20-146.12(A)(2)
11
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. § 50A-
201(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. 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, 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
6 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. § 50A-
201(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.
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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).5 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.
5 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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findingthetruth
Tufted Titmouse
Joined: Jul 01, 2008
Posts: 31
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| Posted: Thu Jul 10, 2008 8:58 pm Post subject: |
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| Katy_North wrote: | This is the legimate document that Parul Joshi researched in her news story
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
2
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
3
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
4
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 See also N.C. Gen. Stat. § 50A-201(a)(4); Va. Code § 20-146.12(A)(4).
3 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. § 50A-
201(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. 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, 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
6 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. § 50A-
201(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.
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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).5 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.
5 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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K.K.K Katy - What a post! This of course lays out a lot about what is going on in this case regarding the minor child Joshua Smith. If the father Javan Smith wants to make a public outcry then this is what the public needs to see. |
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findingthetruth
Tufted Titmouse
Joined: Jul 01, 2008
Posts: 31
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| Posted: Sat Jul 12, 2008 12:11 pm Post subject: A new twist to consider |
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It seems quite possible that when it comes to the case of Joshua Smith where a Texas Lawyer, a so-called children’s advocate in the guise of Hope4Kidz and the father are fighting so hard to malign the justice system of North Carolina there is an ulterior motive to all the hype, dollar signs. There is supposed to be a law suit against the state of NC in the works to the tune of 50 million dollars. The three active participants of Hope4Kidz, the Texas Attorney and the Father may not truly be concerned about Joshua and North Carolina's jurisdiction. I believe they are concerned about winning the subsequent lawsuit that they hope to bring if they can get Joshua out of the hands of the state of NC. The case takes on a new twist when dollar signs start clouding peoples’ eyes and hearts so much so that the truth is maligned and twisted so that winning Joshua means possible millions to these people.
Joshua is not a trophy or prize in a national game that is starting to look like a Joshua lottery; he is not a 50 million dollar asset. Joshua Smith is a young man who deserves to have a wholesome and happy childhood, education, regular meals, security, stability, safety and love. Those were obviously the goals of North Carolina Social Services in their efforts to protect Joshua and to make sure that he is in a safe and wholesome environment. Surely, North Carolina is not out to reap the rewards of 50 million dollars for having Joshua, but it seems that a Texas Lawyer, an assumed Texas children's advocate and a father who moved away from his son to reside in Texas and make false claims of jurisdiction may see this young man as a monetary asset. In the process, the lawyer, the advocate and the father it seems may have sought to malign the character and veracity of those individuals who they see as a threat to their future plans of substantial monetary gain. Their collective attempts to harass or discredit all individuals, including the mother of Joshua, Sarah Smith, could net them millions in a subsequent lawsuit because they all appear to want to substantiate the lies instead of support the truth. When reading or hearing the reports of the father’s tall tales about this case they come off as being more like a fairy tale concocted in the mind of the mentally ill.
I appeal to American citizens to please stand up for justice and do not permit an injustice to eventually line the pockets of greedy people who would attempt to malign the veracity of others and possibly return Joshua to an unsafe environment in order to obtain wealth! |
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Katy_North
Hummingbird
Joined: Jul 08, 2008
Posts: 20
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| Posted: Sat Jul 12, 2008 7:08 pm Post subject: I got your back………GREAT POST! |
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I can't add anymore to what you have posted because it already spells it out " GREED". I researched into something Javan had posted which is the 22nd post down about the Therapist Jamie Claus Getz.
Posts on Insesiontrials.com
What bothered me so much about his post is that he said that Jamie Claus Getz the Therapist was discovered in September 2005 to have been unlicensed and unqualified. How could Jamie Claus Getz a unlicensed and unqualified Therapist do a Diagnostic Evaluation and Updated Clinical Assessment dated 05/26/06?.......Somebody isn't telling the truth. |
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aprillove
Pileated woodpecker
Joined: Dec 31, 2005
Posts: 178
Location: indiana
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| Posted: Sun Jul 13, 2008 9:49 pm Post subject: |
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again, katy north and finding truth have been posting on another forum and sending threatening/harrassing e-mails to those of us working with javan.
if the moderators need to speak to me about this, please do so.
this person/people obviously have an ax to grind with javan. she/they whoever the heck it is have joined forums where we have posted for the sole purpose of smearing javan. not to mention the other bull we've had to put up with via e-mails.
no i was not there when all this occured originally with joshua, but i am the "human filing cabinent" and as such can state there's a lot of BS being thrown out.
if anyone wants an update on what is going on, go to www.hope4kidz.org
this person/people whoever the heck they are have no interest in autism or autism related subjects. the sole purpose of joining this forum is to attack javan (and he's not even a member here LOL).
i don't want to give this person/people a lot of time as we have already had to put a lot of time into their BS--time that would be better spent trying to rescue joshua.
and by the way, texas would not have issued court papers like this without PROOF behind it. one state does not attack another without just cause.
anyway, that's about all i'm going to say in regards to this person/people. if moderators would like to know more about what we have endured because of these trolls, i will gladly let you know.
thanks
april
_________________
April Love - Author
"Gift of the Morning"
"Secrets of a City Bench" |
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Katy_North
Hummingbird
Joined: Jul 08, 2008
Posts: 20
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| Posted: Sun Jul 13, 2008 10:41 pm Post subject: Just posting the truth |
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| aprillove wrote: | | again, katy north and finding truth have been posting on another forum and sending threatening/harrassing e-mails to those of us working with javan |
The truth is out there for those who care to Google Javan Smith / Joshua Smith and read the Virginia Memorandum pdf document. No one has made threats towards you or harassed you in anyway except to post the truth on Javan Smith. If there has been threats or harassment it has been concocted in the mind of Javan Smith. |
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