Issues regarding custody and visitation can be contentious in any divorce. However, the issues become more complicated if one parent relocates out of state. Relocation opens the door to jurisdiction issues; meaning, what court has the power to hear this case. Assume you and your ex-spouse obtained a divorce in Alabama. However, you relocated to New York and your husband relocated to California. Can you see how this becomes a big issue, one spouse is going to be very inconvenienced if litigation is necessary.
This intestate custody issues is exemplified in a post-divorce case, arising out of Baldwin County, Alabama, in the case of McGonagle v. McGonagle.
Here, the parties were divorced in 2013. The divorce judgment incorporated an agreement of the parties wherein the parties would share joint legal custody of their minor child. Sole physical custody was vested in the mother. Following the divorce, the father moved to Texas.
In 2013, the mother moved to Florida. In November, 2014, the father filed a petition for custody modification alleging that the mother’s lifestyle prevented her from being able to provide a stable environment for the parties’ child. Specifically, the father alleged that the mother’s decision to live in multiple locations and to cohabitate with men to whom she was not married with rendered the environment to be unstable.
After the hearing, the trial court granted sole custody to the father. Accordingly, the mother filed a motion that the trial court lacked jurisdiction to modify custody and that insufficient evidence existed to support the trial court’s judgment. The trial court denied the mother’s motion, and the mother appealed.
According to Code of Alabama, 1975, § 30-2-202, a court in Alabama has exclusive jurisdiction over a child custody case until neither the child, nor the child and one parent, have a significant connection with this state and that substantial evidence is no longer available in the state concerning the child’s care, protection, training, and personal relationships or if a determination is made that the child and his or her parents do not presently reside in this state. In the case at hand, the father, the mother, nor the child resided in Alabama when he filed the modification petition.
Since neither party resided in Alabama at the time of the filing of the modification petition, the trial court lost continuing, exclusive subject-matter jurisdiction. Once a court loses subject-matter jurisdiction, the court may only modify a custody determination if it has jurisdiction to make an initial custody determination.
Under Alabama law, to make an initial custody determination there must be evidence that Alabama is the home state of the child or was the home state within six months before the commencement of the proceeding. The Court deemed that Alabama was not the home state of the child nor was Alabama the home state of the child six months preceding the filing of the modification petition. The appellate court ruled they lacked jurisdiction, the judgment of the circuit court was void, and the appeal is due to be dismissed.
I often encounter questions from clients regarding where to file a child custody modification. Establishing where to file child custody modifications in situations where the parents reside in different states can be complex and confusing. It’s beneficial to partner with an attorney who is experienced in this area of law and can properly examine if it is best to pursue a case in this state or not.
If you are considering filing a petition to modify custody, contact Birmingham child custody lawyer Joseph A. Ingram or Ingram Law LLC, at (205) 335-2640. We can represent you in any county in Alabama.