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Presence of One Parent in Joint Custody is Enough for Jurisdiction


Whether or not a court has jurisdiction means whether or not that court has the official power to make legal decisions and judgments over the parties in a case. This becomes more difficult in situations such as divorces where the parties both lived in the same state at the time of the divorce, but one person has moved since.

Recently, in Limestone County, in Ex parte Breslow, the Court of Civil Appeals addressed whether Alabama still had jurisdiction to modify a custody order when the mother and children had relocated to another state.

The parties in this case were divorced in 2016. By their divorce agreement, they were awarded joint legal custody of the children and the mother had sole physical custody. Furthermore, the agreement provided the father with visitation on 80 days throughout the year. Both parties also agreed that the mother could relocate at her discretion.

In 2017, the father filed a modification petition, following the mother’s relocation to California. He alleged that she had denied him visitation. The father requested a modification to the current visitation schedule and the provision that he agree to pay all costs associated with his visitation. The mother filed a motion to dismiss, asserting that Alabama did not have jurisdiction over her or her children. The trial court denied the mother’s motion to dismiss. She filed a writ of mandamus (an order to correct an abuse of discretion made by a lower court).

The mother’s arguments stem from the Uniform Child Custody Jurisdiction and Enforcement Act. Under the UCCJEA, if an Alabama court makes the determination that neither the child, nor the child and one parent, have significant connection to the state, the court does not have exclusive jurisdiction over custody determinations. However, the Court of Civil Appeals relied on the Alabama Parent-Child Relationship Protection act.

If only one person having joint custody maintains a principal residence in the state, the child also has a significant connection to the state. The Court reasoned that because the father has continued to live in Alabama, there is no reason to determine whether the children and mother have a significant connection to the state. The trial court retains jurisdiction over the children and the mother’s petition for writ of mandamus is denied.

The main takeaway here is that in joint custody arrangements, presence of one parent in the state allows the court to maintain jurisdiction over custody orders of the children. Here, because the father maintained his residence in Alabama, the court maintained jurisdiction over the children (despite their living in California with the mother.)

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) 335-2640 for help with your case.


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