Court of Civil Appeals Gets Jurisdiction Right and Terminology Wrong in Recent Child Custody Ruling
(5 min read) This article is on the technical side and may be of more interest to our colleagues in the field. However, the 6-month time requirements and the procrastination which prevented a mother from getting the relief she sought are note-worthy, generally.
This case, original opinion here, provides a good discussion and application of Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act, (UCCJEA), found at § 30-3B-101, et seq., Ala. Code 1975. The Court reaffirms that the UCCJEA applies to the Juvenile Courts and Dependency cases. More specifically, the Court addresses the subject-matter jurisdiction of the Juvenile Court when a child has been moved to the state and has been in the care and control of a “person acting as a parent” for at least six months before the filing of any custody petition in Alabama, including a dependency petition in juvenile court.
The Court of Civil Appeals, however, is a little sloppy here with the term “Physical Custody.” The language I’ve got a problem with is on p. 12 of the slip opinion:
“Thus, we conclude that, for at least six months before E.C. and J.C. commenced the .03 actions, the children had been living with a person who had physical custody of them and who asserted a right to custody of the children under Alabama’s dependency statutes. See, e.g., § 30-3B-102(13), Ala. Code 1975.”
N.Z. v. J.C. and E.C., 2180432, -433 (Ala. Civ. App. 2019) at 12. (emphasis added).
“Physical Custody” is a term of art strictly defined by that Alabama Code at § 30-3-151(3),(5), as well as specifically in the Juvenile Code at § 12-15-102(16), Ala. Code 1975. This Court of Civil Appeals has been adamant in reminding trial court judges to use the terms correctly. See Young v. Corrigan, 253 So.3d 373 (Ala. Civ. App. 2017) (“There is but one way to interpret a judgment that awards joint custody with an award of primary physical custody to one parent: such a judgment must be interpreted as awarding the parents joint legal custody and awarding one parent sole physical custody, the term used to denote a parent being favored with the right of custody over the other parent, who will receive visitation”); Myers v. Myers, 260 So.3d 55 (Ala. Civ. App. 2018), (“Judgment in divorce case awarding wife ‘primary residential custody” of child, with specified visitation rights awarded to husband, would be construed as judgment awarding wife sole physical custody of child.”)
The opinion does mention that there was some sort of order in 03-2018 that granted pendente lite custody to the Petitioners in .01. However, the crux of the entire opinion is that the Court lacked subject matter jurisdiction in points .01 but did have subject matter jurisdiction in .03. Thus, even regarding the temporary order the Court may have lacked jurisdiction to even enter a temporary order.*
(* I could be wrong. The UCCJEA does allow for “emergency” jurisdiction outside of a child’s home state, but it doesn’t smell like that’s what the trial court was thinking or what the parties understood here. The pendente lite order wasn’t entered until at least about a month after the filing of the .01 petition. Furthermore, emergency orders are typically styled / named as such with ex parte or emergency in the heading rather than the milquetoast nomenclature of pendente lite.)
More care should be taken by the Court not to confuse practitioners and parties possessing a more lay understanding of the term Custody, Physical or otherwise. The Court’s reasoning leads readers to believe that the Court lacked subject matter jurisdiction in points .01 and maybe .02 regarding these children, in consideration of their initial filing dates. Therefore, any award of custody, even pendente lite, in .01 or .02 could have been void ab initio**, and would not have provided grounds for the Court to determine someone had any kind of “custody” in Alabama for the requisite 6 months discussed.
The Court could have reached the desired result without confusing its terminology. The statutory definition of “home state” relied upon to reach the Court’s holding, § 30-3B-102(7), Ala. Code 1975, includes considering a “person acting as a parent” living in the state as a qualifying individual. If the statute had meant “custodian,” the statute could have and should have said so.
I don’t expect the semantic issues in this case to present a substantive issue for the Court going forward. I just think the Civ Apps missed an opportunity to reiterate a lesson they’ve been prone to teach and that the trial courts are prone to screwing up.
Here’s what’s scary. If everyone had done everything right, emergency custody might have been entered in Alabama but then the right thing for the trial court to do would have been to transfer the case back to Florida for further proceedings. The Mother kinda drug her feet procedurally and ended up losing out here. Goes to show we Child Custody lawyers have to address jurisdictional issues asap.
(** The purported amendment of a nullity is also a nullity. See Porter v. Commonwealth, 276 Va. 203, 228, 661 S.E.2d 415, 427 (2008) (“A defect in subject matter jurisdiction cannot be cured by reissuance of process, passage of time, or pleading amendment.”). Alabama Dep’t of Corr. v. Montgomery Cty. Comm’n, 11 So. 3d 189, 193 (Ala. 2008))
This article contains general information and should not be construed as legal advice for you and or your unique situation. If you would like to speak more about how you, as a Committed Parent or Caring Relative, can be more effective in your Child Custody case, please visit www.ThinkFoxtrot.com/public_calendars/ to schedule your initial consultation at one of our offices. ~SW, Foxtrot