Ak v. Nb

66 So. 3d 242, 2008 Ala. Civ. App. LEXIS 316, 2008 WL 2154098
CourtCourt of Civil Appeals of Alabama
DecidedMay 23, 2008
Docket2070086
StatusPublished

This text of 66 So. 3d 242 (Ak v. Nb) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ak v. Nb, 66 So. 3d 242, 2008 Ala. Civ. App. LEXIS 316, 2008 WL 2154098 (Ala. Ct. App. 2008).

Opinion

66 So.3d 242 (2008)

A.K.
v.
N.B.

2070086.

Court of Civil Appeals of Alabama.

May 23, 2008.
Rehearing Denied December 19, 2008.

*243 Kimberly A. Clark, Dothan, for appellant.

L. Jan Laney, Dothan, for appellee.

PITTMAN, Judge.

A.K., a woman who has been adjudged by the Superior Court of Sutter County, California ("the California court"), to be a legal parent of A.R.B.K. ("the child"), a child born to N.B., appeals from an order of the Houston Juvenile Court ("the Alabama court") denying a motion that, in effect, sought relief from the Alabama court's previous judgment declaring that N.B. was the sole legal parent of the child and that A.K. was not entitled to visitation with the child. Because we conclude that the Alabama court lacked jurisdiction to enter its judgment regarding the child's parentage and the parties' visitation rights as to the child, we reverse the Alabama court's order denying A.K.'s motion and remand the cause with instructions to dismiss N.B.'s action in that court.

The record reveals that the child was conceived by means of artificial insemination of an egg furnished by N.B.; N.B. carried the child in utero to term, giving birth to the child in April 1999 in California. The child's original California birth certificate lists N.B. as the child's mother, but it does not indicate another parent. The record further reveals that N.B. and A.K. lived together in California in an arrangement that was described by A.K.'s counsel as having rendered the two of them "co-parents" with respect to the child; however, that arrangement apparently came to an end in March 2004, when the two parties ceased living together and N.B. and the child established a different California domicile.

California, like Alabama, has adopted a number of provisions of the 1973 Uniform Parentage Act ("UPA"), under which an interested party may seek a declaration that he or she is the father or the mother of a child. Compare Cal. Fam.Code § 7600 et seq., with Ala.Code 1975, § 26-17-1 et seq. Although Alabama appellate courts have yet to consider the question, in August 2005, the Supreme Court of California, construing that state's version of the UPA, held that a woman with whom the biological mother of a child has lived in a committed romantic relationship can, in law, also be deemed a "mother" of that *244 child by analogy to provisions permitting a presumed father of a child to be adjudicated a parent of that child. See Elisa B. v. Superior Court, 37 Cal.4th 108, 33 Cal. Rptr.3d 46, 117 P.3d 660 (2005) (disapproving, among other decisions to the contrary, West v. Superior Court, 59 Cal.App.4th 302, 69 Cal.Rptr.2d 160 (1997)).

In September 2005, approximately one month after Elisa B. was decided and one month after N.B. and the child had moved from California to Alabama, A.K., who has remained a California resident, filed in the California court a "Petition to Establish Parental Relationship" in which she described herself as a "presumed mother" of the child under § 7611(d) of the California Family Code, a portion of the UPA as adopted in California. In that petition, N.B. and the child were alleged to be California residents. A.K. sought, among other things, a declaration by the California court of her rights as to custody and visitation regarding the child.

Pursuant to the Parental Kidnaping Prevention Act ("PKPA"), a federal statute codified at 28 U.S.C. § 1738A, a state must enforce a "custody determination or visitation determination made ... by a court of another State" that is "consistent with" the PKPA. 28 U.S.C. § 1738A(a). Under the PKPA, "[a] child custody or visitation determination made by a court of a State" is to be deemed "consistent with" the PKPA if the court making the determination "has jurisdiction under the law of such State" and if the state in which the court sits "had been the child's home State within six months before the date of the commencement of the proceeding" when (a) "the child is absent from such State because of his removal or retention by a contestant or for other reasons," and (b) "a contestant[1] continues to live in such State." 28 U.S.C. § 1738A(c). In addition, the PKPA provides that a state court may not "exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination." 28 U.S.C. § 1738A(g). At the time A.K. filed her "Petition to Establish Parental Relationship" in the California court in September 2005, N.B. and the child had not resided in Alabama for a six-month period.

After the parentage and visitation proceeding was initiated in the California court, that court ordered the parties to engage in mediation of their dispute. It is not clear from the record whether mediation did not take place or whether mediation was unsuccessful; however, it does reflect that the parties and their attorneys appeared in the California court on August 15, 2006, for a contested hearing. After that hearing, the parties were directed to attend a mediation session on August 18, 2006, and to return to court later that day for a further hearing on, among other matters, child custody and visitation. The California court rendered a judgment on September 11, 2006, determining both A.K. and N.B. to be parents of the child, and that judgment was subsequently filed with the clerk of that court.

On September 6, 2006, after her appearance in the California court to contest A.K.'s petition (but five days before the California court had determined A.K. to be a parent of the child), N.B. filed a "Petition for Temporary Custody" in the Alabama court in which she alleged, in pertinent part, that she and the child had lived in *245 Alabama for more than a year, that the Alabama court had jurisdiction, and that Alabama "ha[d] a greater interest in the outcome of any proceeding having to do with the best interest of the child"; she further averred that A.K. had engaged in "constant name calling" that had emotionally scarred the child and that A.K. intended to kidnap the child and return her to California. The Alabama court entered an ex parte order on September 8, 2006, granting N.B. sole custody of the child pending further orders and enjoining the child's removal from Alabama. The Alabama court subsequently appointed a guardian ad litem to represent the interests of the child in N.B.'s action. On November 14, 2006, the Alabama court held a hearing on N.B.'s petition at which only counsel for N.B. and the child's guardian ad litem appeared. After that hearing, the Alabama court entered a judgment on November 16, 2006, determining that the child had already moved to Alabama by the time A.K.'s petition was filed in the California court and that the California court "ha[d] no subject matter jurisdiction in this matter ab initio

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Cite This Page — Counsel Stack

Bluebook (online)
66 So. 3d 242, 2008 Ala. Civ. App. LEXIS 316, 2008 WL 2154098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ak-v-nb-alacivapp-2008.