Typically, in a divorce proceeding, people think that the mother is always awarded physical custody of the child.
However, that is not always true. If the case is litigated, meaning you go before the judge, the custody determination is gender neutral. To explain further, there is no presumption the mother will get the child.
In the case of Hammack v. Moxcey, which arose out of Fayette County, Alabama, the court granted the physical custody of the child to the father. Even though this case is centered on jurisdiction issues, this case demonstrates the courts willingness to grant physical custody to the father, even though the mother currently had physical custody of the child.
This case involves a nonmarital relationship that resulted in a child born out of wedlock in March 2011. In 2012, the father, who is a Florida resident, filed a paternity petition and custody action in the Florida court system.
In March 2013, the Florida court entered a ruling granting custody of the child to the father, which the mother alleges that she was never notified about. As a consequence of the Florida Court ruling, the Florida Court subsequently issued a pickup order regarding the child.
Despite the ruling in Florida, on April 2013 the mother commenced an action in an Alabama trial court seeking a determination of custody, visitation, and child support. However, the Alabama trial court dismissed the action because the Florida court retained jurisdiction over the custody dispute.
While the action commenced by the mother was pending in the Alabama court system, the father filed a complaint to enforce the pickup order in an Alabama trial court. The Alabama trial court held an evidentiary hearing and dismissed the action on the basis that the mother was denied the due process of the law by not receiving notice of hearing in Florida till after the final hearing took place. The father did not appeal from this judgment.
In September 2013, the Florida court entered a second pickup order. On March 26, 2015, the father, again, filed a complaint in Alabama trial court to enforce the pickup order that was granted in Florida.
The trial court ruled pursuant to Ala. Code 1975, §30-3B-313, which provides that the state must enforce a pickup order if it is consistent with the Uniform Child Custody Jurisdiction Enforcement Act (“ UCCJEA”). The UCCJEA requires the court exercising jurisdiction over child custody proceeding to notify each parent of the child so the parent is afforded the opportunity to be heard.
The trial court determined that the order was consistent with the UCCJEA and enforced the pickup order. The mother appealed, claiming that the order was not consistent with the UCCJEA because she never received notification of the hearing in Florida.
It is undisputed in the case at hand that the mother attended the child custody proceedings, but an issue arose when the mother alleged that she was not formally notified of the child custody hearing. Yet, Ala. Code, §30-3B-108, states that notice of a hearing is not required when a person submits to jurisdiction of the court. Since the mother physically attended the hearings she submitted to jurisdiction, and the Florida court did not have to formally notify her.
State lines have become one of the biggest issues when dealing with child custody and visitation issues. Jurisdiction in a multi-state child custody dispute is a complicated matter, and it is beneficial to seek out an attorney.
If you facing a multi-state child custody dispute seek, or if you are a you are a father seeking out physical custody of your child seek out an attorney who is well versed in interstate family and divorce law.
For a child custody lawyer, contact Joseph A. Ingram at (205) 335-2640.