J.A. v. C.M.
2012 Ala. Civ. App. LEXIS 87
Ala. Civ. App.2012Background
- Maternal aunt filed a petition alleging the children were dependent on July 8, 2011, and pendente lite custody was granted to the maternal grandmother and aunt.
- The juvenile court later awarded pendente lite custody solely to the maternal aunt, and then allowed visits between the mother/father and children.
- A final hearing on October 27, 2011 resulted in a judgment on November 9, 2011 finding the children were not dependent and returning custody to the mother and father.
- Despite a finding of no dependency, the juvenile court also awarded the maternal aunt visitation with the children (monthly weekends, one week in summer, weekly telephone contact).
- The parents appealed, arguing the court had no authority to grant visitation after determining the children were not dependent; postjudgment motions were denied by operation of law and the appeal followed.
- The appellate court held the juvenile court lacked jurisdiction to award visitation or affect custody when the children were not dependent and reversed/remanded to dismiss the petition and return custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether visitation to the maternal aunt is permissible when the child is not dependent | Mother and father (parents) contend the Act does not allow aunt visitation without dependency. | Aunt argues the court may award visitation as part of disposition. | No; court lacked jurisdiction to award visitation. |
Key Cases Cited
- Ex parte Byrom, 47 So.3d 791 (Ala. 2010) (pure question of law reviewed de novo)
- V.W. v. G.W., 990 So.2d 414 (Ala.Civ.App.2008) (dependency disposition requires dependency finding)
- K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379 (Ala.Civ.App.2004) (to dispose in a dependency action, must be dependent)
- T.B. v. T.H., 30 So.3d 429 (Ala.Civ.App.2009) (when not dependent, disposition cannot be entered)
- J.W. v. T.D., 58 So.3d 782 (Ala.Civ.App.2010) (no disposition if not dependent; petition dismissal required)
- J.L. v. W.E., 64 So.3d 631 (Ala.Civ.App.2010) (absence of dependency eliminates need for dispositional phase)
- K.C.G. v. S.J.R., 46 So.3d 499 (Ala.Civ.App.2010) (if not dependent, no custody disposition)