197 So. 3d 503
Ala. Civ. App.2015Background
- Child born Nov. 30, 2010; parents never married. Mother moved with child from Alabama to California on July 1, 2011; father remained in Alabama.
- Father filed a paternity/custody action in Jefferson Juvenile Court on Oct. 13, 2011; earlier orders awarded mother primary custody and father visitation but no final judgment was entered.
- June 25, 2015 juvenile-court order declared Alabama the child’s home state, awarded mother primary physical custody, and ordered the child to remain in Alabama pending final hearing.
- Father moved for immediate custody on July 23, 2015, alleging mother failed to return child and to make child available for visitation.
- Sept. 4, 2015 juvenile-court pendente lite order (after counsel argument, over GAL’s strong objection) awarded father sole legal and physical custody.
- Mother petitioned this court for a writ of mandamus seeking vacatur of the June 25 and Sept. 4, 2015 pendente lite orders (challenging jurisdictional basis, failure to apply domestic-violence rebuttable-presumption statutes, failure to apply best-interest standard, and visitation-cost/relocation directives).
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Timeliness of mandamus petition re: June 25 order | Petition timely enough / jurisdiction can be raised anytime | Petition filed 88 days after order; presumptively reasonable period was 14 days | Denied as to June 25 order for lack of timely filing (no good cause shown) |
| Timeliness re: Sept. 4 order (one-day late) | One-day delay was excusable; counsel error; supplied good-cause on rehearing | Petition lacked required statement of good cause originally | Accepted petition as to Sept. 4 order (court exercised discretion to accept one-day delay) |
| Subject-matter jurisdiction (home-state under UCCJEA) | Alabama not home state at commencement because child had lived in CA >6 months | Alabama was home state within 6 months before filing and father remained in Alabama; § 30-3B-201(a)(1) applies | Court held Alabama had jurisdiction under § 30-3B-201(a)(1) (child had lived in AL within six months before filing and parent remained in state) |
| Whether Sept. 4 order improperly changed custody without evidentiary hearing / failed to apply domestic-violence statutes | Juvenile court failed to address rebuttable-presumption and protections in §§ 30-3-130 et seq.; failed to apply best-interest standard and consider DV evidence | Change was justified by mother’s alleged noncompliance with visitation | Court: No judicial finding of domestic violence existed, so those statutes did not yet apply; but court erred by changing custody pendente lite without an evidentiary hearing on best interests — mandamus granted to vacate custody change |
Key Cases Cited
- Ex parte Sharp, 893 So.2d 571 (Ala. 2003) (lack of subject-matter jurisdiction may be raised at any time)
- R.P.M. v. P.D.A., 112 So.3d 49 (Ala. Civ. App. 2012) (14 days is presumptively reasonable time to seek mandamus review of juvenile-court orders)
- Ex parte Siderius, 144 So.3d 319 (Ala. 2013) ( § 30-3B-201(a)(1) permits initial child-custody determinations when the state was home state within six months before commencement and a parent remains in the state)
- Ex parte Cincinnati Ins. Co., 51 So.3d 298 (Ala. 2010) (appellate court will not consider evidence not presented to the trial court in mandamus proceedings)
- Ex parte Russell, 911 So.2d 719 (Ala. Civ. App. 2005) (pendente lite custody awards require evidence that such an award is in the child’s best interest)
- Cochran v. Cochran, 5 So.3d 1220 (Ala. 2008) (custody modification is not the proper remedy for visitation disputes; contempt is appropriate remedy)