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    Family Law Legal Research Blog

    FAMILY LAW: Custody Is Determined in Child's Home State, Not State Where Divorce Is Filed

    Posted by Sandra L. Thomas on Mon, Mar 6, 2017 @ 16:03 PM

    The Lawletter Vol 42 No 2

    Sandra Thomas, Senior Attorney, National Legal Research Group

          Another case has confirmed the primacy of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") over local jurisdictional rules that conflict with that statutory scheme. The Court of Civil Appeals of Alabama has reversed a trial court order that held the trial court had subject-matter jurisdiction over a child custody petition that was filed in Alabama by the child's father at the time the father filed a petition for divorce from the child's mother. Ex parte Holloway, No. 2150821, 2016 WL 4493653 (Ala. Civ. App. Aug. 26, 2016).

         The parents were married in Alabama in October 2014 and they separated in June 2015. The father filed a complaint for divorce October 23, 2015 that included a request for custody of the parties' minor son, who was born September 20, 2015. The father alleged that the mother had abandoned the marriage and had moved to Mississippi to live with her mother. Alabama law provides: "Upon granting a divorce, the court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper." Ala. Code § 30-3-1.

         The mother did not dispute the trial court's jurisdiction to divorce the parties and divide their marital property, but she challenged the court's jurisdiction to decide custody. The mother stated that the parties' son had been born in Mississippi and had lived in Mississippi since his birth. Citing provisions of the Alabama UCCJEA, the mother argued that Alabama was not the child's home state, and she moved to dismiss the portion of the father's complaint that sought to litigate child custody in Alabama.

         In June 2016, the Alabama trial court entered an order finding that it had subject-matter jurisdiction over the child custody issue and a second order denying the mother's motion to dismiss the custody portion of the father's complaint. The mother timely filed a petition for a writ of mandamus challenging the trial court's orders.

         The Alabama Court of Civil Appeals began by quoting section 30-3B-201 of the Alabama Code, which provides:

    (a) [A] court of this state has jurisdiction to make an initial child custody determination only if:

    (1) This state is the home state of the child on the date of the commencement the proceeding[.]

         Alternative grounds allow a court to make an initial child custody determination if no court has home state jurisdiction under this provision or if the home state or states have declined to exercise jurisdiction. None of those circumstances applied to the case.

         Under the UCCJEA, the term "home state" is defined as follows:

    HOME STATE. 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 any of the persons mentioned. A period of temporary absence of the child or any of the mentioned persons is part of the period.

    Ala. Code § 30-3B-102(7) (emphasis added).

         The appellate court noted that it was undisputed that the child had been born in Mississippi and that he had lived with the mother in Mississippi following his birth. Citing the language of the UCCJEA and Alabama case law, the court was compelled to conclude that the Alabama court lacked home state jurisdiction to hear the custody issue. The Court of Civil Appeals granted the mother's petition for a writ of mandamus and directed the trial court to vacate its order denying the mother's motion to dismiss the father's complaint for custody.

    Topics: family law, custody, child's home state, UCCJEA

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