One Good Reason to Consult a Family Lawyer Before Filing Petition to Modify Visitation in Good

This is a modification of visitation case from Madison County, Alabama. The par­ties were divorced in 2008 in Alabama. The mother had custody of the child. In 2014, the mother filed a petition in Georgia seeking to modify the father’s visitation rights. In 2015, the father filed a petition in Ala­bama seeking a finding of contempt for the mother’s fail­ure to comply with the visitation provisions of the court’s prior judgment and for a modification of his child support obligation.

The mother filed a motion to dismiss the father’s contempt and modification petition. The trial court denied the mother’s motion to dismiss. The mother, in the case of Ex Parte Collins, filed a petition for writ of mandamus. A writ of mandamus is a petition asking a higher court to review a lower court’s decision immediately. Writ of mandamus granted.

The Court of Civil Appeals determined the case was governed by the UCCJE, Uniform Child Custody Jurisdiction and Enforce­ment Act. Pursuant to Section 30-3B-202(a)(1), a court of this state has continuing exclu­sive jurisdiction until neither the child, nor the child and one parent no longer have a significant connection with this state. The court held, “How­ever, the fact that a parent remains in this state does not, in and of itself, establish continuing, exclusive jurisdiction.”

“A court must still determine whether the child and at least one parent have a significant connection to this state and whether substantial evidence is available in this state con­cerning the child’s care, protection, training and personal relationships.”

In this case, the child had lived with the mother for the last seven years in Georgia. The child’s only relative in Alabama is the father. Since 2012, the child has visited with the father solely in Georgia except for one week that she spent with the father in Ala­bama in July 2013.

The father agreed that no documentary evidence or witnesses, other than himself, were available in this state pertaining to the care, protection, training or personal relationships of the child. “Based on that undis­puted evidence, the only legal conclusion to be drawn is that the child does not have a significant connection with this state.” In this case, the Alabama court lacked continu­ing, exclusive jurisdiction to enforce the visitation rights of the father.

All cases are determined on facts. Just because the parties were divorced in Alabama, did not mean that the courts in Alabama retained jurisdiction over the parties forever. The court in its decision determined that the child had little if any contact with Alabama. In the event the child had regularly visited with the father her in Alabama, the Alabama Court would have had jurisdiction over the parties. The lesson to learn from this case is to seek legal counsel before you file a Petition to Modify Visitation.

As divorced parents are more likely to move related to career changes now, it is important to get legal counsel about which court has jurisdiction over the parties and the case. In this case, the mother won the battle to have the case heard before a Georgia Court. I do not disagree with the father for trying to enforce his visitation rights in Alabama. If you find yourself wanting to modify your visitation schedule, please call a family lawyer to seek legal advice.

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