Follow Proper Procedures in Out-of-State Custody Cases

Determining custody after a divorce is not easy. Both parents often feel they are better suited for the role of “primary custodian.” The court can choose to make one parent’s authority over the other or to split the custody 50/50. There is a difference between legal and physical custody in the law.

A parent with legal custody can make decisions on behalf of the child (such as schooling, medical care, etc.) A parent with physical custody has the child live with him/her.

In Baldwin County, Alabama, the recent case of Ex parte Thompson demonstrates how difficult the procedure underlying custody can be. In the divorce judgment between the Thompsons, the parties were awarded joint legal custody of their children and the father was awarded sole physical custody. Two years after the custody case, in June 2017, the father provided the mother of his notice of intent to move with the children to New York.

On June 26, the mother sent by certified mail a letter objecting to the proposed move, filed a petition to modify custody, and filed an affidavit of substantial hardship. On July 12, the mother filed with the court the letter and also filed an amended objection to the move.

On October 10, the trial court denied the father’s motion to dismiss the objection. The father then filed a petition for writ of mandamus (an order to correct an abuse of discretion) where he argued that the trial court erred in allowing the mother to file her objection in an existing case without initiating a new civil case and without paying a filing fee within 30 days after receiving the father’s notice of his intent to move.

On appeal, the Court denied the writ of mandamus. According to the Alabama Parent-Child Relationship Protection Act, after receiving notice of a proposed relocation of a child’s principal residence, a noncustodial parent has 30 days to file a proceeding objecting to the proposed move.

Because the mother filed both her petition containing her objection and her hardship affidavit within the 30 days, she complied with the Act. Thus, the father failed to demonstrate error at the trial court level.

The main takeaway is that procedure is just as important as substantive law when trying to succeed in a custody battle. It is important to seek an experienced child custody attorney who understands the realities of Alabama custody law. If you need a child custody lawyer, contact INGRAM LAW LLC at (205) 236-3997 for help with your custody case.

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