P.D. v. S.S.
67 So. 3d 128
Ala. Civ. App.2011Background
- A mother appeals a Montgomery Juvenile Court custody ruling transferring custody of her three children to the aunt after a finding that the children were dependent.
- The aunt petitioned in March 2009 for dependency and custody; the court granted ex parte custody pending the dependency hearing, which occurred in October 2009.
- The October 23, 2009 judgment declared the children dependent and awarded custody to the aunt with mother-visitation supervised by the aunt or a person approved by the aunt.
- The mother filed a postjudgment motion on November 6, 2009; the court heard arguments December 1, 2009, but did not rule by then, and on December 8, 2009 purported to amend the judgment.
- The mother appealed, challenging (i) the custody award to a nonparent, (ii) whether the postjudgment amendment was void for late ruling, and (iii) the supervised visitation terms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was custody properly awarded to the aunt (a nonparent) after depenency finding? | Mother contends unfitness or dependency findings required prior to nonparent custody. | Aunt argues dependency permits custodial transfer to a nonparent without a finding of parental unfitness. | Yes; dependency supports nonparent custody without unfitness finding. |
| Did the postjudgment motion become void due to late ruling | Order purporting to amend was void because ruling occurred after the deadline. | The court could extend time by express agreement; the December 8 order is void due to expiration. | Void; December 8 order void for exceeding extended deadline. |
| Was the visitation order proper, and must there be a specific schedule | Court should set a specific schedule and not leave visitation to unilateral control of the aunt. | Visitation could be decided by the court and agreed upon but need not be unsupervised if appropriate. | Remand to set an unsupervised visitation schedule; supervised-only visitation was improper. |
Key Cases Cited
- Ex parte Chamblee, 899 So.2d 244 (Ala. 2004) (postjudgment rulings must be formalized by a ruling on the motion)
- A.M.B. v. R.B.B., 4 So.3d 468 (Ala.Civ.App. 2007) (requires specific visitation schedule when visitation is awarded)
- L.L.M. v. S.F., 919 So.2d 307 (Ala.Civ.App. 2005) (limits on custodial parent's control over noncustodian visitation)
- KB. v. Cleburne County Dep't of Human Res., 897 So.2d 379 (Ala.Civ.App. 2004) (visitation not solely conditioned on custodian's consent)
- D.B. v. Madison County Dep't of Human Res., 937 So.2d 535 (Ala.Civ.App. 2006) (visitation rulings reviewed for reasonable contact and standards)
- J.L. v. W.E., 64 So.3d 631 (Ala.Civ.App. 2010) (clear-and-convincing standard for dependency findings; standard of review)
- J.L. v. W.E. (L.A.C. v. T.S.C. cited), 64 So.3d 631 (Ala.Civ.App. 2010) (dependency evidence may be any competent evidence of parental ability to care)
- W.T.H. v. M.M.M., 915 So.2d 64 (Ala.Civ.App. 2005) (distinguishing custody disputes from dependency dispositional findings)
- Ex parte R.T.S., 771 So.2d 475 (Ala. 2000) (trial vs appellate review standards in dependency cases)