Alabama's Uniform Child Custody Jurisdiction Act

Repealed effective January 1, 2000

Go to new law § 30-3B-101 thru 405

Alabama's Uniform Child Custody Jurisdiction Act

§ 30-3-20. Short title.

Statute text

This article may be cited as the Uniform Child Custody Jurisdiction Act.

History

History: Acts 1980, No. 80-92.

Annotations

Alabama Law Review. - The new Alabama adoption code: A step forward. 42 Ala. L. Rev. 63 (1990).

Collateral references. - Applicability of Uniform Child Custody Jurisdiction Act (UCCJA) to temporary custody orders. 81 ALR4th 1101.

CASE NOTES

General comment

Construction with other law

Federal law

Jurisdiction

Notice

Cited

General comment.

-- Under this Act, §§ 30-3-20 et seq., and the Parental Kidnapping Prevention Act, even if a state has statutory jurisdiction over a child custody matter, it may decline to exercise its jurisdiction should it be made to appear that another state is the more appropriate forum. Such a decision will not be overturned on appeal absent an abuse of discretion. Holloway v. Holloway 519 So. 2d 531 (Ala. Civ. App. 1987).

-- A state court may decline to exercise its jurisdiction over a child custody matter, even if that state has statutory jurisdiction, if it appears that another state is the more appropriate forum. B.D.C. v. L.C. 586 So. 2d 924 (Ala. Civ. App. 1991).

-- Once a court obtains jurisdiction of the parties in a divorce action, it maintains that jurisdiction for purposes of modification of its orders as to support or child custody. The exercise of that jurisdiction may be affected in child custody cases according to the provisions of the Alabama UCCJA or the federal Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (1988). Kalifeh v. Kalifeh 637 So. 2d 899 (Ala. Civ. App. 1994).

Construction with other law.

-- Alabama court lacked jurisdiction to modify Texas custody decree where Texas court conducted its proceedings in conformity with the federal Parental Kidnapping Prevention Act. Applegate v. Gant 460 So. 2d 1293 (Ala. Civ. App. 1984).

-- In the context of interstate child custody and support actions, where Alabama is neither the initiating nor responding state, an Alabama court is not the proper forum for a challenge to those extraterritorial proceedings. Trillo v. Trillo 506 So. 2d 1019 (Ala. Civ. App. 1987).

-- Alabama courts, pursuant to Alabama's Uniform Child Custody Jurisdiction Act, must recognize and enforce valid custody modification judgments of another state but where foreign state did not have jurisdiction, the Alabama court was not required to give full faith and credit to its judgment. Case v. Case 627 So. 2d 980 (Ala. Civ. App. 1993).

-- Alabama courts, pursuant to the Uniform Child Custody Jurisdiction Act must recognize and enforce valid custody judgments of another state. P.A.T. v. D.B. 638 So. 2d 905 (Ala. Civ. App. 1994).

Federal law.

-- Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A, and the Uniform Child Custody and Jurisdiction Act, govern interstate custody disputes; if there is a conflict between the two statutes, the PKPA governs, because it is a federal statute. Mitchell v. Mitchell 437 So. 2d 122 (Ala. Civ. App. 1982); Via v. Johnston 521 So. 2d 1324 (Ala. Civ. App. 1987); Blankenship v. Blankenship 534 So. 2d 320 (Ala. Civ. App. 1988); Cole v. Cooley 547 So. 2d 1187 (Ala. Civ. App. 1989); Stanley v. State, Dep't of Human Resources 567 So. 2d 310 (Ala. Civ. App. 1990); Hunter v. Hunter 585 So. 2d 71 (Ala. Civ. App. 1991); Lyon v. Lyon 618 So. 2d 127 (Ala. Civ. App. 1992); M.M.H. v. T.L.L. 634 So. 2d 567 (Ala. Civ. App. 1994); Shook v. Shook 651 So. 2d 6 (Ala. Civ. App. 1994).

-- In cases of conflict between the federal Parental Kidnapping Protection Act and the state Uniform Child Custody Jurisdiction Act governing interstate child custody disputes, the federal law governs. Thus, Alabama courts have no authority to modify a custody order of another state unless the other state loses or declines to exercise its jurisdiction. It was error, then, to accept evidence of the child's circumstances at the initial hearing when such hearing should have limited to resolving the jurisdictional issue. Wheeler v. Buck 452 So. 2d 864 (Ala. Civ. App. 1984).

Jurisdiction

-- Under this article and the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, a state court may decline to exercise its statutory jurisdiction if it appears that another state is the more appropriate forum. Ex parte C.V. 707 So. 2d 249 (Ala. Civ. App. 1997).

Notice.

-- Pursuant to § 30-3-24, Code 1975, before a court issues a decree under the Uniform Child Custody Jurisdiction Act, §§ 30-3-20 through 30-3-43, Code 1975, "reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child." Ex parte Izundu 563 So. 2d 1042 (Ala. Civ. App. 1990).

§ 30-3-21. General purposes of article.

Statute text

(a) The general purposes of this article are to:

(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody, which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;

(2) Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;

(3) Assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state;

(4) Discourage continuing controversies over child custody, in the interest of greater stability of home environment and of secure family relationships for the child;

(5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards;

(6) Avoid relitigation of custody decisions of other states in this state insofar as feasible;

(7) Facilitate the enforcement of custody decrees of other states;

(8) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child; and

(9) Make uniform the law of those states which enact it.

(b) This article shall be construed to promote the general purposes stated in this section.

History

History: Acts 1980, No. 80-92.

Annotations

Cross references. -This law is referred to in: §§ 30-3-27.

CASE NOTES

General comment

Federal law

Illustrative cases

Cited

General comment.

-- In proceedings involving the custody and care of infants, the paramount consideration is the well-being and good of the infant. Fletcher v. Preston 148 So. 137 (Ala. 1933).

-- One major purpose of the UCCJA is to prevent abductions or removal of children from a court's jurisdiction in order to obtain a more favorable custody determination in another jurisdiction. P.A.T. v. D.B. 638 So. 2d 905 (Ala. Civ. App. 1994).

Federal law.

-- Where the federal parental kidnapping prevention act (PKPA), 28 U.S.C. § 1738A, applies, Alabama does not have the authority to modify a custody determination, unless the sister state loses jurisdiction or declines to exercise such jurisdiction to modify such determination. Alvarez v. Bressett 602 So. 2d 433 (Ala. Civ. App. 1992).

Illustrative cases.

-- Since, under subsection (a)(5), one of the purposes of the UCCJA is to prevent abductions or removal of children from a court's jurisdiction, a state court should not exercise jurisdiction over a case where the mother abducted or removed a child in order to thwart a decree of another state. Bloodgood v. Whigham 408 So. 2d 122 (Ala. Civ. App. 1981).

-- In a suit for modification of custody originally decided in Georgia, Alabama is the proper jurisdiction, where the mother now lives in Alabama with her two minor children and the father lives in Wisconsin. Bandor v. Bandor 636 So. 2d 1254 (Ala. Civ. App. 1994).

§ 30-3-22. Definitions.

Statute text

As used in this article:

(1) Contestant. A person, including a parent, who claims a right to custody or visitation rights with respect to a child;

(2) Custody determination. A court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person;

(3) Custody proceeding. Includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings;

(4) Decree or Custody decree. A custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree;

(5) Home state. The state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period;

(6) Initial decree. The first custody decree concerning a particular child;

(7) Modification decree. A custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court;

(8) Physical custody. Actual possession and control of a child;

(9) Person acting as parent. A person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody; and

(10) State. Any state, territory, or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia.

History

History: Acts 1980, No. 80-92.

Annotations

CASE NOTES

Custody determination

Custody proceeding

Home state

Cited

Custody determination.

-- Section 30-3-22(4), Code 1975, defines a "decree," for purposes of the Act, as "[a] custody determination contained in a judicial decree or order made in a custody proceeding . . .." Here, the court's order simply requires that the children be returned to Alabama. This order is not a custody determination. Ex parte Izundu 563 So. 2d 1042 (Ala. Civ. App. 1990).

Custody proceeding.

-- Petition by the children's paternal grandmother seeking temporary custody and seeking to enjoin the department of human resources from transferring custody to the state of Florida could have been properly denied on the basis that, prior to the petition being filed in Alabama, the Florida court had previously assumed jurisdiction in conformity with the Uniform Child Custody Jurisdiction Act (UCCJA) under § 30-3-26(a), where in response to the Florida social services agency's petition for shelter care of the children, the Florida court had found that the children were dependent, and, under subsection (3) of this section, a custody proceeding includes a dependency proceeding. L.L. v. St. Clair County Dep't of Human Resources 659 So. 2d 618 (Ala. Civ. App. 1994).

Home state.

-- While there was no dispute that the child in a custody dispute resided with her mother in Mississippi for six consecutive months, the Alabama court properly asserted jurisdiction, as the "home state" requisite is but one of the criteria that the court should consider when determining whether to assume jurisdiction. M.M.H. v. T.L.L. 634 So. 2d 567 (Ala. Civ. App. 1994).

-- Alabama had jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act as the home state of the children at the time the grandmother filed her petition for visitation where the children were not removed to foreign state until after the Alabama petition was filed and the case was set for trial, as their physical presence in foreign state at that time did not deprive the Alabama court of home state jurisdiction. P.A.T. v. D.B. 638 So. 2d 905 (Ala. Civ. App. 1994).

-- The trial court had jurisdiction over the father's petition to modify the child custody order of an Illinois court, where the father's daughter had lived with him for seven months prior to his filing the petition. Statz v. McWaters 726 So. 2d 660 (Ala. Civ. App. 1998).

§ 30-3-23. Jurisdiction of courts.

Statute text

(a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(1) This state:

a. Is the home state of the child at the time of commencement of the proceeding; or

b. Had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or

(2) It is in the best interest of the child that a court of this state assume jurisdiction because:

a. The child and his parents, or the child and at least one contestant, have a significant connection with this state; and

b. There is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or

(3) The child is physically present in this state and:

a. The child has been abandoned; or

b. It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or

(4) a. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child; and

b. It is in the best interest of the child that a court of this state assume jurisdiction.

(b) Except under subdivisions (3) and (4) of subsection (a), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

History

History: Acts 1980, No. 80-92.

Annotations

Cross references. -This law is referred to in: §§ 30-3-32.

CASE NOTES

General comment

Construction with other law

Emergency

Evidence - Insufficient

Jurisdiction

Subsection (a)(2)

Illustrative cases

Cited

General comment.

-- Court of equity has inherent authority to act to protect the welfare and best interests of a child physically present within the court's jurisdiction, and such jurisdiction is invoked by any pleading which on its face shows that the welfare of the child requires an order regarding the child's custody or support, and existence of valid decree of another state regarding custody of child does not of itself defeat the jurisdiction of equity courts where jurisdiction otherwise properly exists. Ely v. Casteel 341 So. 2d 730 (Ala. Civ. App. 1977).

-- The fact that the parent subsequently took the children with him out of state after the proceeding is not relevant to determinating if Alabama is the home state of the child at the time of commencement of the proceeding. Berry v. Berry 466 So. 2d 138 (Ala. Civ. App. 1985).

-- Alabama courts have continuing preferred jurisdiction over custody matters if the initial custody determination was entered with proper jurisdiction and either the child or either parent continues to reside in Alabama. Hunter v. Hunter 585 So. 2d 71 (Ala. Civ. App. 1991); Lyon v. Lyon 618 So. 2d 127 (Ala. Civ. App. 1992).

-- Where the father was still an Alabama resident, and the matter before the court was not one of custody modification, but rather visitation modification, and where if the father had petitioned for a custody change, Texas might have been the better forum, such a conclusion is based on the fact that those persons closest to the children's situation lived in Texas, and whereas this was a visitation matter with the father still maintaining his Alabama residency, the trial court did not abuse its discretion in refusing to decline jurisdiction. Whitfield v. Whitfield 519 So. 2d 546 (Ala. Civ. App. 1987).

Construction with other law.

-- If a court determines that it does not have jurisdiction under § 30-3-23, the child custody process stops. If the court determines that it does have jurisdiction, it must determine whether it is the more appropriate and convenient forum under the guidelines of § 30-3-27(c). M.M.H. v. T.L.L. 634 So. 2d 567 (Ala. Civ. App. 1994).

Emergency.

-- On mother's petition to modify child custody order rendered by another state, alleging that the child was in need of immediate protection, where there was no showing of a defined emergency requiring protection of the child, there was no basis for invoking emergency jurisdiction. Sistrunk v. McKenzie 439 So. 2d 700 (Ala. Civ. App. 1983).

-- Petition by the children's paternal grandmother seeking temporary custody and seeking to enjoin the department of human resources from transferring custody to the state of Florida was properly denied where, prior to the petition being filed in Alabama, the Florida court properly assumed jurisdiction under the emergency provision of this section and where the record revealed that the grandmother had physical custody of the children, but she did not have legal custody. L.L. v. St. Clair County Dep't of Human Resources 659 So. 2d 618 (Ala. Civ. App. 1994).

-- A court did not have emergency jurisdiction because the child was not physically present within the State of Alabama. McBride v. McBride 688 So. 2d 856 (Ala. Civ. App. 1997).

Evidence - Insufficient.

-- Evidence was insufficient to support the allegation that the trial court had abused its discretion in transferring a motion for change of visitation to the state of Georgia. Bennett v. Bennett 506 So. 2d 1021 (Ala. Civ. App. 1987).

-- A court did not have "best interest" jurisdiction because the child did not have a significant connection with the state, and there was not available in this state substantial evidence concerning her present or future care, protection, training and personal relationships. McBride v. McBride 688 So. 2d 856 (Ala. Civ. App. 1997).

Jurisdiction

-- Under this section of the Alabama enactment of the Uniform Child Custody Jurisdiction Act, the Alabama circuit court retained jurisdiction under Alabama law to modify its initial child custody determination; Alabama remained the residence of the natural father; therefore, the Alabama circuit court had continuing jurisdiction under the Parental Kidnapping Prevention Act. Ex parte J.R.W. 667 So. 2d 74 (Ala. 1994).

-- The Texas district court was prohibited by the Parental Kidnapping Prevention Act (PKPA) from modifying the prior custody determination of the Alabama circuit court; the Alabama court, which entered initial custody determination, had "continuing preferred" jurisdiction under the PKPA. Ex parte J.R.W. 667 So. 2d 74 (Ala. 1994).

-- The Uniform Child Custody Jurisdiction Act encourages continuing jurisdiction by a court which entered an original custody judgment unless that court is presently without jurisdiction or has declined to assume jurisdiction. Vick v. Vick 675 So. 2d 1324 (Ala. Civ. App. 1996).

-- The trial court no longer had subject matter jurisdiction to modify its previous order as to child custody, since its continuing jurisdiction was lost when both parents and the child removed themselves from the state where the judgment was rendered. Ex parte Carstens 728 So. 2d 128 (Ala. 1998).

-- The Alabama court had jurisdiction to modify a Florida divorce judgment, where the former wife and children had lived in Alabama before moving to New Hampshire, none of the parties had lived in Florida for more than a year, and Alabama was the children's home state when the former husband filed his motion to modify. Merryman v. Merryman 725 So. 2d 986 (Ala. Civ. App. 1998).

Subsection (a)(2).

-- Section 30-3-23(a)(2) encourages continuing jurisdiction by a court which entered an original custody judgment unless that court presently is without jurisdiction under subsection (a)(2) or has declined to assume jurisdiction. Pitts v. Sutter 408 So. 2d 105 (Ala. Civ. App. 1981).

Illustrative cases.

-- Not an abuse of discretion to defer to jurisdiction of Colorado court where motion to modify custody was pending in Colorado at time that mother's motion to modify custody was brought in Alabama, given that custodial father resided in Colorado, child had lived in Colorado, and alleged abuse of child was committed in Colorado. Stevenson v. Stevenson 452 So. 2d 869 (Ala. Civ. App. 1984).

-- Because the child and its mother had lived in Alabama since shortly after the divorce, and because the child was in Oklahoma only as a visitor with his father under the visitation rights given in the Texas divorce and was due to be returned to his mother at the end of the summer, therefore, at the commencement of the proceeding for custody by the father in the court of Oklahoma, Oklahoma was not the home state of the child as defined by the UCCJA. There can be no question but that Alabama has been the home state of the child. The courts of this state had complete jurisdiction to determine his custody. The Oklahoma court had no jurisdiction; its judgment of custody is not due full faith and credit in Alabama. In re Colburn 497 So. 2d 182 (Ala. Civ. App. 1986).

-- The Alabama trial court's order denying the father's motion to stay shows that the exercise of jurisdiction in Alabama was based upon § 30-3-23(a)(2). Thus, the Missouri court retained continuing jurisdiction over any child custody disputes between the parties and the exclusive right to issue a modification as long as the child or one of the parties remained a resident of Missouri and Missouri does not decline jurisdiction. Sebeniecher v. Corl 567 So. 2d 321 (Ala. Civ. App. 1990).

-- Since Alabama is not precluded from assuming jurisdiction by an order of another state in an initial custody action and Mississippi subsequently declined to accept jurisdiction, the Alabama court properly assessed the matter in accordance with the UCCJA and properly assumed jurisdiction. Alabama was the more appropriate and convenient forum. M.M.H. v. T.L.L. 634 So. 2d 567 (Ala. Civ. App. 1994).

-- Alabama court clearly had jurisdiction where the children, their father, and the grandmother had a significant connection with the state and there was available in the state substantial evidence concerning the children's present or future care, protection, training, and personal relationships. P.A.T. v. D.B. 638 So. 2d 905 (Ala. Civ. App. 1994).

-- Trial court properly maintained jurisdiction in a child custody modification proceeding in the county where the divorce decree was granted despite the fact that both the mother and the father had since moved to Tennessee, where the mother testified that she and her child spent a lot of time with her family who lived in the county where the divorce decree was granted and the court of the county in Tennessee where the mother and father resided did not take jurisdiction over the custody determination, although it did take jurisdiction over the enforcement of the child support ordered in the divorce judgment. Pittman v. Pittman 658 So. 2d 470 (Ala. Civ. App. 1994).

-- The trial court had jurisdiction over this case where the child had spent the majority of her life in Alabama, substantial evidence concerning the child's welfare and care was more readily available here, and Alabama had more contacts with the child than Kansas did, making Alabama the more appropriate forum. Krier v. Krier 676 So. 2d 1335 (Ala. Civ. App. 1996).

-- By virtue of the child's residence in South Carolina for more than six months, that state becomes the child's home state, and is the proper jurisdiction for any further custody proceedings. Vick v. Vick 688 So. 2d 852 (Ala. Civ. App. 1997).

-- An Alabama court had no jurisdiction to decide issues of child custody and visitation under this section, as the court did not have home state jurisdiction. The minor child resided with the mother in Virginia and had not resided in Alabama for six months before the filing of the complaint for divorce. McBride v. McBride 688 So. 2d 856 (Ala. Civ. App. 1997).

-- Father's first, false affidavit did not divest the Florida court of jurisdiction to decide the issue of child custody because the affidavit was apparently later amended and the Florida court, at the time it entered the divorce judgment, had all the relevant jurisdictional facts before it. D.B. v. P.B. 692 So. 2d 856 (Ala. Civ. App. 1997).

-- Where plaintiff claimed to be child's biological father, but was not married to mother, and mother was married to another man at the time of the child's birth, plaintiff was neither a "parent" nor a "contestant" under this section, since mother's husband was presumed to be father, and therefore plaintiff had no jurisdiction to bring his claim under this section. J.K. v. R.S. 706 So. 2d 1262 (Ala. Civ. App. 1997).

Cited in Bloodgood v. Whigham 408 So. 2d 122 (Ala. Civ. App. 1981); Moore v. Perez 428 So. 2d 113 (Ala. Civ. App. 1983); Skelton v. Sudge 455 So. 2d 38 (Ala. Civ. App. 1984); Dobbins v. Maner 517 So. 2d 619 (Ala. Civ. App. 1987); Jackson v. Jackson 520 So. 2d 530 (Ala. Civ. App. 1988); Ex parte Shepherd 565 So. 2d 241 (Ala. 1990); Statz v. McWaters 726 So. 2d 660 (Ala. Civ. App. 1998).

§ 30-3-24. Notice to parties; required.

Statute text

Before making a decree under this article, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child. If any of these persons is outside this state, notice and opportunity to be heard shall be given pursuant to Section 30-3-25.

History

History: Acts 1980, No. 80-92.

Annotations

CASE NOTES

Construction with other law

Due process

Parties

Waiver

Illustrative cases

Cited

Construction with other law.

-- Where a Louisiana custody order was entered without any notice to the father, or without his having a reasonable opportunity to be heard, the order was not made consistently with the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, and was not entitled to full faith and credit by the courts of Alabama. Ex parte Raywood 549 So. 2d 103 (Ala. Civ. App. 1989).

Due process

-- In a custody modification action, procedural due process should be scrupulously observed by perfecting proper service of the pleadings and of reasonable notice of the setting of the matter for trial. Vick v. Vick 675 So. 2d 1324 (Ala. Civ. App. 1996).

Parties.

-- Mother is not the proper party to raise the issue of lack of notice to the unknown natural father. Mitchell v. Mitchell 521 So. 2d 62 (Ala. Civ. App. 1988).

-- Where the Nigerian father grounded his right to petition the court for a writ of mandamus on the failure of the trial court to give notice to his relatives in Nigeria (who had physical custody of the children) of the custody proceeding pending in Alabama, the writ was properly denied. Merely alleging a procedural deficiency respecting third parties does not set forth a redressable injury sufficient to grant the petitioner standing to challenge a court order directing him to act. The court failed to see how the absence of notice to parties in Nigeria altered or impaired any rights of the petitioner. Ex parte Izundu 568 So. 2d 771 (Ala. 1990).

-- Because father's parental rights were never legally terminated pursuant to § 26-18-7, he had a clear legal right to be party to juvenile court action and to intervene in mother's custody petition. Ex parte J.M. 707 So. 2d 271 (Ala. Civ. App. 1997).

Waiver

-- Father submitted to the court's jurisdiction by virtue of representation by his counsel, and therefore, the notice requirement under § 30-3-25 was removed. Krier v. Krier 676 So. 2d 1335 (Ala. Civ. App. 1996).

Illustrative cases.

-- Circuit court order which ex parte and summarily enforced a North Dakota custody modification judgment by transferring child custody violated procedural due process requirements; while courts of Alabama are required not only to recognize, but to enforce, valid custody modification judgments of another state, procedural due process should be scrupulously observed by perfecting proper service of the pleadings and of reasonable notice of the setting of the matter for trial; summary power to issue ex parte child custody orders should be exercised with extreme caution. Wyatt v. Falhsing 396 So. 2d 1069 (Ala. Civ. App. 1981).

Cited in Pitts v. Sutter 408 So. 2d 105 (Ala. Civ. App. 1981); Dean v. Dean 447 So. 2d 728 (Ala. Civ. App. 1982); Johnston v. Johnston 440 So. 2d 1112 (Ala. Civ. App. 1983); Ex parte Izundu 563 So. 2d 1042 (Ala. Civ. App. 1990); Black v. Black 625 So. 2d 450 (Ala. Civ. App. 1993); P.A.T. v. D.B. 638 So. 2d 905 (Ala. Civ. App. 1994).

§ 30-3-25. Notice to parties; how given; proof of service outside state; when not required.

Statute text

(a) Notice required for the exercise of jurisdiction over a person outside this state shall be given in a manner reasonably calculated to give actual notice, and may be:

(1) By personal delivery outside this state in the manner prescribed for service of process within this state;

(2) In the manner prescribed by the law of the place in which the service is made for service of process in that place in an action in any of its courts of general jurisdiction;

(3) By any form of mail addressed to the person to be served and requesting a receipt; or

(4) As directed by the court, including publication, if other means of notification are ineffective.

(b) Notice under this section shall be served, mailed, or delivered, or last published, at least 20 days before any hearing in this state.

(c) Proof of service outside this state may be made by affidavit of the individual who made the service or in the manner prescribed by the law of this state, the order pursuant to which the service is made, or the law of the place in which the service is made. If service is made by mail, proof may be a receipt signed by the addressee or other evidence of delivery to the addressee.

(d) Notice is not required if a person submits to the jurisdiction of the court.

History

History: Acts 1980, No. 80-92.

Annotations

Cross references. -This law is referred to in: §§ 30-3-24, 30-3-30, 30-3-31, 30-3-32.

CASE NOTES

Construction with other law

Waiver

Construction with other law.

-- While the Uniform Child Custody Jurisdiction Act has no "direct" application to a child support modification case, this section is persuasive authority for service of non-resident defendants by publication. Gross v. Loewen 522 So. 2d 306 (Ala. Civ. App. 1988).

Waiver

-- Father submitted to the court's jurisdiction by virtue of representation by his counsel, and therefore, the notice requirement under this section was removed. Krier v. Krier 676 So. 2d 1335 (Ala. Civ. App. 1996).

§ 30-3-26. Exercise of jurisdiction when proceeding pending in another state.

Statute text

(a) A court of this state shall not exercise its jurisdiction under this article if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this article, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

(b) Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties under Section 30-3-29 and shall consult the child custody registry established under Section 30-3-36 concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.

(c) If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending, to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with Sections 30-3-39 through 30-3-42. If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court, to the end that the issues may be litigated in the more appropriate forum.

History

History: Acts 1980, No. 80-92.

Annotations

CASE NOTES

General comment

Construction with other law

Evidence - Insufficient

Federal law

When applicable

Illustrative cases

Cited

General comment.

-- On a petition for modification of a child custody order, where there are simultaneous proceedings underway in another state with jurisdiction, Alabama courts may not exercise jurisdiction without first consulting with the court of the sister state where such matters are pending. Sistrunk v. McKenzie 439 So. 2d 700 (Ala. Civ. App. 1983).

-- Alabama courts have "continuing preferred" jurisdiction over custody matters if the initial custody determination was entered with proper jurisdiction and either the child or either parent continues to reside in Alabama. Lyon v. Lyon 618 So. 2d 127 (Ala. Civ. App. 1992).

Construction with other law.

-- Petition by the children's paternal grandmother seeking temporary custody and seeking to enjoin the department of human resources from transferring custody to the state of Florida could have been properly denied on the basis that, prior to the petition being filed in Alabama, the Florida court had previously assumed jurisdiction in conformity with the Uniform Child Custody Jurisdiction Act (UCCJA) under subsection (a) of this section, where in response to the Florida social services agency's petition for shelter care of the children, the Florida court had found that the children were dependent, and, under § 30-3-22(3) a custody proceeding includes a dependency proceeding. L.L. v. St. Clair County Dep't of Human Resources 659 So. 2d 618 (Ala. Civ. App. 1994).

Evidence - Insufficient.

-- In custody action where mother maintained that Alabama trial court declined jurisdiction of the matter, thus precluding jurisdiction from being proper in Alabama, in order to demonstrate that the Alabama court declined jurisdiction, the mother merely offered a letter written by the judge of the Superior Court of Ventura County, California, in which the California judge confirmed an alleged telephone conversation between him and the Alabama trial judge regarding the parties' dispute. In the letter the California judge stated that he would assume jurisdiction over the visitation and custody matters involved; the mother offered no other proof which would demonstrate that the trial judge had declined jurisdiction. The trial judge's actions indicated that he had not declined jurisdiction and the trial court did not err by exercising jurisdiction of the visitation and custody issues. Mewbourne v. Mewbourne 630 So. 2d 459 (Ala. Civ. App. 1993).

Federal law.

-- In a complaint for divorce filed by the mother, the Alabama circuit court erred in exercising jurisdiction over a child who resided with the mother in Alabama where the original custody order was issued in North Carolina at the time that the parties separated and the father continued to reside in North Carolina; the North Carolina court had continuing jurisdiction under the Federal Kidnapping Prevention Act (28 U.S.C. § 1738A) and the circuit court erred by not communicating under subsection (c) of this section with the North Carolina court. Colston v. Colston 660 So. 2d 1357 (Ala. Civ. App. 1995).

When applicable.

-- Because grandmother's initial petition requesting visitation fell within the UCCJA definition of a custody determination, therefore a custody proceeding was pending in Alabama at the time that the paternal aunt filed her petition for custody in the foreign court. P.A.T. v. D.B. 638 So. 2d 905 (Ala. Civ. App. 1994).

Illustrative cases.

-- Where the husband claimed that the Alabama court violated this section because, even after being informed of the alleged pending action in Louisiana, it refused to communicate with the Louisiana court and exercised its jurisdiction, because the Louisiana court no longer had jurisdiction, any technical violation of this section was harmless. Ex parte Blanton 463 So. 2d 162 (Ala. 1985).

-- Where the mother informed the Alabama court of the existence of a Rhode Island order as required by the statute, it was error for the Alabama court to exercise jurisdiction over a child custody matter without complying with the Parental Kidnapping Prevention Act, 28 USC § 1738A, and the Uniform Child Custody Jurisdiction Act, § 30-3-20 et seq. Webster v. Webster 723 So. 2d 59 (Ala. Civ. App. 1997).

Cited in Pitts v. Sutter 408 So. 2d 105 (Ala. Civ. App. 1981); Ex parte Sistrunk 439 So. 2d 702 (Ala. 1983); Reyner v. Reyner 646 So. 2d 118 (Ala. Civ. App. 1994); Lyon v. Lyon 662 So. 2d 285 (Ala. Civ. App. 1995).

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