In re: K.S. v. R.A.K.

• Court: Court of Civil Appeals of Alabama
• Decided: February 20, 2026
• Docket: CL-2025-1024
• Status: Published

Opinion

Rel: February 20, 2026

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2025-2026 _________________________

CL-2025-1024 _________________________

Ex parte K.S.

PETITION FOR WRIT OF MANDAMUS

(In re: K.S.

v.

R.A.K.)

(Marshall Juvenile Court: CS-25-900077)

FRIDY, Judge.

K.S. ("the mother") petitions this court for a writ of mandamus

directing the Marshall Juvenile Court to vacate its order denying her

motion to transfer this action to the Mobile Juvenile Court and to enter CL-2025-1024

an order transferring the action to the Mobile Juvenile Court. For the

reasons set forth herein, we grant the mother's petition in part, deny the

petition in part, and issue the writ.

Background The materials submitted in support of and in opposition to the

mother's mandamus petition indicate that the mother and R.A.K. ("the

father") were in a relationship and that a child, H.C.K.-B. ("the child"),

was born of that relationship in December 2024. On November 7, 2025,

the father filed in the Marshall Juvenile Court a verified petition to

establish paternity pursuant to § 26-17-601, Ala. Code 1975, part of the

Alabama Uniform Parentage Act ("the AUPA"), § 26-17-101 et seq., Ala.

Code 1975. He also sought sole physical custody of the child or,

alternatively, asked that the mother and he share joint physical custody.

The father attached an affidavit to the paternity petition in which he said

that he and the mother had lived with his grandmother, C.B. ("the

paternal great-grandmother"), for two years in Marshall County but that

on November 2, 2025, the mother had taken the child with her to the

home of her parents ("the maternal grandparents") in Mobile County. In

the paternity petition, the father asked for emergency relief, specifically,

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that the Marshall Juvenile Court direct the mother to return the child to

Marshall County immediately and to permit him access to the child.

On November 10, 2025, the Marshall Juvenile Court entered an

order directing the mother to return the child to Marshall County

pending further order of the court and scheduled a hearing for November

19, 2025, to consider pendente lite support for the child. On November

11, 2025, the mother filed a motion to dismiss, pursuant to Rule 12(b)(3),

Ala. R. Civ. P., on the basis that the father's action had been brought in

an improper venue or to transfer the action to the Mobile Juvenile Court.

In the motion, the mother claimed that she and the child had resided at

the maternal grandparents' home on Dauphin Island in Mobile County

since November 2, 2025, and that, therefore, venue was proper only in

Mobile County. The mother relied on the venue statute applicable to

actions brought under the AUPA, which provides:

"Venue for a proceeding to adjudicate parentage is in the county of this state in which:

"(1) the child resides;

"(2) the defendant resides;

"(3) a proceeding for probate or administration of the presumed or alleged father's estate has been commenced; or

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"(4) the plaintiff resides, only if the circumstances in subdivisions (1), (2), or (3) do not apply."

§ 26-17-605, Ala. Code 1975. The Marshall Juvenile Court set the

mother's motion for a hearing at the same time as the hearing to consider

pendente lite support for the child.

At the outset of the November 19 hearing, the Marshall Juvenile

Court limited the scope of the hearing to the issue of venue. It noted that

the parties had stipulated that the father was the presumed legal father

of the child, who was then ten months old, but that the issue of paternity

would be decided in a subsequent hearing in either the Marshall Juvenile

Court or another court once the issue of venue was determined.

At the hearing, the mother testified that she had decided to leave

the home she and the child shared with the father on October 31, 2025,

because, she said, she was afraid to stay with the father any longer. The

evidence tended to show that the mother and the father had a volatile

relationship. The mother testified regarding two incidents -- one in the

fall of 2023 and the other in November 2024 -- in which, she said, the

father left bruises on her arm or grabbed her arm so tightly that his

fingernails drew blood.

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Regarding the night of October 31, 2025, the mother said, the father

and she were going to take the child trick-or-treating, but she and the

father had argued because of the length of time she was taking to get

ready. She said that she told the father that she would drive the child

and him to go trick-or-treating but that the father "wasn't okay with

that." She said that she continued to get ready to go and then told the

father that she was going to take the child trick-or-treating without him

because, she said, she did not want to be around him. The mother said

that the father told her that if she took the car, the paternal great-

grandmother would report to the police that she had stolen the car. She

also said that the father and the paternal great-grandmother were

following her around the house screaming at her, so she did not take the

car and, instead, put the child in a stroller and walked off down the street.

Ultimately, the mother said, she and the father both took the child trick-

or-treating that night, and she stayed at their house that night. However,

the mother said, the next day she called the maternal grandparents at

their home on Dauphin Island and asked them to come to Marshall

County to get her and the child. She said that she and the child stayed

with the maternal grandparents at a rental house in Marshall County

5 CL-2025-1024

the night of November 1, 2025, and that they left for Dauphin Island the

next day, November 2, 2025.

The mother testified that, when she left Marshall County, she did

not intend to return. She said that she had obtained a new driver's license

that indicated that she lived at the maternal grandparents' Dauphin

Island address and that she had filed a change-of-address form with the

United States Postal Service. She acknowledged that she had not signed

a lease with the maternal grandparents, with whom she and the child

were living, and that she could leave there whenever she wanted.

The mother testified that she had left clothes and animals in

Marshall County and had instructed the father on how to feed the deer

she cared for. She said that she intentionally misled the father into

believing that she intended to return to Marshall County because, she

said, she was worried that he would come to Mobile County if he believed

that she had left him permanently.

Because of time limitations the Marshall Juvenile Court set for the

hearing, the father's testimony was brief. He said that when he

commenced the paternity action, he believed that the mother would be

returning to Marshall County. He said that, the week after he filed the

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paternity petition, he learned from the mother that she would not be

returning. He said that, when he commenced the paternity action, he

considered the child's residence to be the house he and the mother had

shared in Marshall County.

On November 21, 2025, the Marshall Juvenile Court entered an

order denying the mother's motion to dismiss or to transfer the action to

the Mobile Juvenile Court. In its order, the Marshall Juvenile Court

found that the mother and the father had lived together in Marshall

County until November 2, 2025, when the mother relocated to Mobile

County with the child. When she left Marshall County, the Marshall

Juvenile Court found, the mother told the father that her absence from

the county was temporary and that she and the child would be back, but

she testified that she had "lied to the [father] to escape alleged abuse at

[his] hands." However, the Marshall Juvenile Court found, "[i]t did not

appear from the testimony … that these allegations were of an emergent

nature, but of supposed incidents prior to the birth of the child."

The Marshall Juvenile Court cited the father's testimony that,

when he filed the paternity petition, he believed that the mother and the

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child's residence was still in Marshall County. It then explained its

rationale for denying the mother's request for a change of venue, writing:

"In this case, the [father] when filing the litigation had a reasonable belief that the child's residence was Marshall County. As he filed this petition, he could have logically relied upon the statements by the [mother] that she was not permanently relocating to Mobile County and that her residence remained Marshall County. Additionally, it cannot be considered within the spirit of the venue statute for one parent to have the exclusive right, solely through temporary possession of the minor child to change said residence, individually on that parent's whim. Sleeping a handful of nights in a relative's house without any binding agreement to remain is no different than acquiring a hotel room for the purpose of 'establishing residence.' If that were enough, then whomever retains the child after a disagreement on Halloween night could rent a room in any county in this state, claim residence for themselves and the child to require venue in that county. The [mother] may very well now intend to remain in Mobile County as a resident, but that is not relevant to the question of venue. What is relevant are the circumstances as a petitioner may know at the time of filing. The [father] initiated this action with the understanding that the child's residence was Marshall County based on his own knowledge along with reinforcement by the [mother] informing him she and the child were coming back. That’s good enough for this Court to find that venue was proper and within the statutory requirement."

The mother filed her petition for a writ of mandamus with this court

on December 3, 2025.

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Standard of Review

The proper method for obtaining review of an order denying a

motion for a change of venue in a civil action is to petition for a writ of

mandamus. See Ex parte Pike Fabrication, Inc., 859 So. 2d 1089, 1091

(Ala. 2002). Mandamus is a drastic and extraordinary writ, to be issued

only where there is (1) a clear legal right in the petitioner to the order

sought; (2) an imperative duty upon the respondent to perform,

accompanied by a refusal to do so; (3) the lack of another adequate

remedy; and (4) properly invoked jurisdiction of the court. See Ex parte

Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). "This Court reviews

mandamus petitions seeking review of a venue determination by asking

whether the trial court exceeded its discretion in granting or denying the

motion for a change of venue." Ex parte Perfection Siding, Inc., 882 So.

2d 307, 310 (Ala. 2003). The burden of proving improper venue is on the

party raising the issue, and, on review of an order refusing to transfer an

action, a writ of mandamus will issue only if the petitioner makes a clear

showing of error on the part of the trial judge. See Ex parte Pike

Fabrication, Inc., 859 So. 2d at 1091. Moreover, when the trial court's

order denying a motion for a change of venue is based on oral testimony,

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this court applies the ore tenus standard to review disputed issues of fact.

Ex parte L.B., 304 So. 3d 222, 225 (Ala. Civ. App. 2020). That standard

requires that a trial court's ruling on a motion for a change of venue is

presumed to be correct, and this court will not reverse the trial court's

decision on the motion unless it is plainly and palpably erroneous. Id.

Analysis

The mother contends that the Marshall Juvenile Court erred in

denying her motion to transfer the father's paternity action to the Mobile

Juvenile Court because, she says, she had moved to Mobile County with

the child on November 2, 2025, and the two of them resided in Mobile

County when the father commenced the paternity action five days later,

on November 7, 2025. She contends that, to the extent that the Marshall

Juvenile Court implied that the mother and the child still resided in

Marshall County when the father commenced the paternity action, that

finding, she says, is based on an incorrect standard.

When ruling on a motion to transfer an action to another venue, the

trial court must determine whether venue was proper at the time the

action was commenced. Ex parte Canady, 563 So. 2d 1024, 1025 (Ala.

1990). As noted above, the venue statute relevant to this AUPA action

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provides, in pertinent part, that, in a paternity action, venue is proper in

the county in which the child resides or in which the defendant, in this

case the mother, resides. § 26-17-605(1) and (2).

In Ex parte L.B., 304 So. 3d 222, this court addressed what

constitutes a "residence" for purposes of determining proper venue,

observing that Alabama, and, indeed, most jurisdictions, consider the

terms "residence" and "domicile" to be synonymous, " 'denot[ing] the place

where the person is deemed in law to live and may not always be the

place where the person is actually dwelling.' " 304 So. 3d at 226-27

(quoting Ex parte Sides, 594 So. 2d 93, 95 (Ala. 1992)). We then quoted

the following from Ex parte Weissinger, 247 Ala. 113, 117, 22 So. 2d 510,

514 (1945):

" 'A person's domicile is that place in which his habitation is fixed, without any present intention of removing, and it embraces (1) the fact of residence and (2) the intention to remain. As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact. Lucky v. Roberts, 211 Ala. 578, 580, 100 So. 878, 879 [(1924)], and cases cited.' "

Ex parte L.B., 304 So. 3d at 227. The party who claims a change of

domicile has the burden of establishing that change, and, " ' "where facts

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are conflicting, the presumption is strongly in favor of an original, or

former, domicile, as against an acquired one." ' " Id. at 227 (citations

omitted).

The mother contends that the Marshall Juvenile Court's

determination that venue was proper in Marshall County was based on

its finding that the father had "a reasonable belief that the child's

residence was Marshall County" but, she argues, nothing in Alabama's

law permits venue to be determined based on a party's subjective belief

of the other party's county of residence. The mother says that it was her

intention to mislead the father so that he would subjectively believe that

she and the child would be returning to Marshall County but that she, in

fact, had no intention of returning with the child to Marshall County. She

argues that the finding of the county of residence for her or the child must

be based on the objective evidence, which, she says, showed that she had

obtained a new driver's license and had submitted a change-of-address

form indicating that, at the time the father filed the paternity petition,

she resided at her parents' residence in Mobile County.

The county in which the mother and the child resided at the time

the father commenced the paternity action was in dispute. However, we

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have found no cases that permit a determination of residency to be based

on the subjective belief of the party filing a petition or complaint

regarding where another party lives or does business. To the contrary, as

stated above, a determination of residency, which is key to venue in this

case, relies on an objective standard: where does the person reside and

does the person intend to remain there. Ex parte L.B., 304 So. 3d at 227.

We agree with the mother that the Marshall Juvenile Court based

its decision that venue was proper in Marshall County on an incorrect

standard -- the father's subjective belief that the mother and the child

resided in Marshall County and not Mobile County -- rather than the

proper, objective standard set forth in Ex parte L.B. As a result, we order

the Marshall Juvenile Court to set aside its order denying the mother's

motion to dismiss or to transfer the action, to reconsider that motion in

light of the proper standard based on the evidence adduced at the hearing

and otherwise, and to enter a new order disposing of that motion. Of

course, the issuance of this writ should not be construed as expressing

this court's view on the proper disposition of the mother's motion; instead,

we hold only that the Marshall Juvenile Court should reconsider the

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motion in the light of the proper standard to be applied in determining

residency for purposes of venue under the AUPA.

Conclusion

Because the Marshall Juvenile Court applied an incorrect standard

in determining that venue is proper in Marshall County, we grant in part

the mother's petition for a writ of mandamus. The Marshall Juvenile

Court is directed to vacate its order of November 21, 2025, denying the

mother's motion to dismiss or for a change of venue, to reconsider the

issue of venue in a manner consistent with this opinion, and to enter a

new order disposing of the mother's motion. Accordingly, we deny the

mother's mandamus petition insofar as it requests that we direct the

Marshall Juvenile Court to transfer the father's paternity action to the

Mobile Juvenile Court.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT

ISSUED.

Moore, P.J., and Edwards, Hanson, and Bowden, JJ., concur.