163 So. 3d 1042
Ala. Civ. App.2014Background
- Child born in Michigan in 2002; maternal grandmother (L.W.) was granted guardianship in Michigan soon after birth and then moved with the child to Alabama.
- Child returned to mother (B.B.) in Michigan in April 2007; mother allowed periodic visits with the grandmother. In June 2011 the child visited the grandmother and did not return to Michigan as scheduled because the grandmother retained the child, alleging observed abuse.
- Mother filed an emergency petition in Tuscaloosa Circuit Court (July 5, 2012) seeking return of the child; grandmother answered and counterclaimed for custody alleging the mother abused the child.
- Jurisdictional dispute under the UCCJEA: grandmother argued Alabama was the child’s home state because she had physical custody for more than six months; mother argued Michigan had jurisdiction.
- Trial court awarded permanent custody to the grandmother and supervised visitation to the mother; appellate court reversed insofar as permanent custody was awarded and remanded for compliance with UCCJEA procedures.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Grandmother) | Held |
|---|---|---|---|
| Whether Alabama had initial jurisdiction under the UCCJEA (home-state) | Michigan is home state; Alabama lacked authority because mother retained legal custody | Alabama is home state because grandmother had physical custody >6 months and was a “person acting as a parent” | Reversed: grandmother did not have a colorable legal claim to custody and thus was not a “person acting as a parent”; Alabama not home state under §30-3B-201(a)(1) |
| Whether Alabama could assume jurisdiction under UCCJEA §30-3B-201(a)(2)/(3) (significant-connection / declination by other state) | Michigan retained jurisdiction; Alabama lacks significant-connection because grandmother not a person acting as a parent | Michigan declined jurisdiction; Alabama should proceed | Court: trial court erred—grandmother not a person acting as a parent; further, trial court failed to comply with §30-3B-110 (no record of court-to-court communications) so cannot rely on Michigan’s declination; remand to follow communications rule |
| Whether trial court could convert or treat grandmother’s counterclaim as an emergency/dependency basis for temporary emergency jurisdiction (§30-3B-204) | Mother: counterclaim is custody contest; dependency belongs in juvenile court | Grandmother: alleged abuse justified emergency measures and custody | Court: temporary emergency jurisdiction may have been invoked but it only permits temporary orders; trial court exceeded scope by awarding permanent custody. Court remanded to limit orders per §30-3B-204(b) and to comply with emergency procedures |
| Whether the grandmother’s counterclaim was a juvenile dependency proceeding (jurisdiction in juvenile court) | Mother: allegations of abuse made the counterclaim a dependency matter exclusive to juvenile court | Grandmother: counterclaim was a custody action between a parent and third party | Court: grandmother’s counterclaim as filed was a custody claim and properly filed in circuit court; court did not decide merits because of UCCJEA jurisdictional error |
Key Cases Cited
- K.R. v. Lauderdale Cnty. Dep’t of Human Res., 133 So.3d 396 (Ala. Civ. App. 2013) (subject-matter jurisdiction and UCCJEA principles)
- J.D. v. Lauderdale Cnty. Dep’t of Human Res., 121 So.3d 381 (Ala. Civ. App. 2013) (UCCJEA definitions and scope)
- Patrick v. Williams, 952 So.2d 1131 (Ala. Civ. App. 2006) (grandparent satisfying “person acting as a parent” where custody arose by parental placement)
- Smith v. Smith, 922 So.2d 94 (Ala. 2005) (limits of in loco parentis characterization)
- Schirado v. Foote, 785 N.W.2d 235 (N.D. 2010) (requiring colorable legal claim to custody to prevent unilateral interstate removals)
- Ex parte L.E.O., 61 So.3d 1042 (Ala. 2010) (dependency findings and juvenile-court jurisdiction)
- Ex parte Terry, 494 So.2d 628 (Ala. 1986) (standard for overcoming a natural parent's prima facie right to custody)