M.M.H. v. T.L.L.

634 So. 2d 567, 1994 Ala. Civ. App. LEXIS 21, 1994 WL 7480
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 14, 1994
DocketAV92000762
StatusPublished
Cited by2 cases

This text of 634 So. 2d 567 (M.M.H. v. T.L.L.) 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
M.M.H. v. T.L.L., 634 So. 2d 567, 1994 Ala. Civ. App. LEXIS 21, 1994 WL 7480 (Ala. Ct. App. 1994).

Opinions

L. CHARLES WRIGHT, Retired Appellate Judge.

This appeal concerns a custody dispute between M.M.H. (mother) and T.L.L. and B.A.L. (maternal grandparents) over K.M.M., an 11-year-old female.

The maternal grandparents filed a petition for temporary custody of the minor child in the Juvenile Court of Lauderdale County, Alabama, on May 27, 1993. Based upon the petition, the court, ex parte, granted temporary custody to the grandparents and set the case for a temporary hearing.

The mother, a resident of Mississippi, was served with process. Appearing specially to contest the jurisdiction of the Lauderdale County Court, she filed a motion to dismiss. Following a hearing, the juvenile court denied the motion. The court allowed temporary custody of the child to remain with the grandparents pending a final hearing.

A hearing concerning the permanent custody of the child was held in August 1993. Following the hearing, the court entered an order granting permanent custody to the grandparents. The mother appeals.

The mother asserts that the Alabama court lacked jurisdiction to entertain the grandparents’ petition. She insists that she and the child were residents of Mississippi, that Mississippi was the home state of the child, and that Alabama had no jurisdiction. She relies on the Uniform Child Custody Jurisdiction Act, §§ 30-3-20 through -44, Code 1975.

The record reflects that the child was born in Lauderdale County, Alabama. Although the mother was married at the time, her husband was not the father of the minor child. The child has never been legitimated, and there has never been any litigation concerning the custody of the child. The child has lived in Lauderdale County all of her life until she moved to Mississippi in 1992. The grandparents have taken care of the child the majority of her life. The mother and the child’s extended family live within Lauder-dale County, Alabama, and its vicinity.

The mother moved to Mississippi in May 1992 due to pending marriage plans. She was married for the third time in July 1992. The child remained in Lauderdale County with her grandparents for the summer of 1992. She moved to Mississippi in August 1992 in time to begin school. She attended the entire school year in Mississippi.

The child testified that she did not get along with her stepfather. She related a number of instances in which he was abusive, both verbally and physically. She testified that her mother was aware of his abusive nature and failed to take any corrective measures to protect her. The child testified that on May 25, 1993, the stepfather made her completely undress in front of him. She did not relate the incident to her mother because she was afraid of the consequences. She told her grandparents about the episode two days later when they arrived to take her on their pre-planned trip to Disney World. The grandparents returned to Lauderdale County and immediately began the custody proceedings.

The mother testified at the hearing on her motion to dismiss. She presented conclusive evidence that she and the child were residents of Mississippi. The mother did not testify, nor did she present any evidence, at the hearing for permanent custody.

The mother filed an action in Mississippi, requesting that the Mississippi court take jurisdiction of the matter. On September 3, 1993, the Mississippi court entered an order holding that Alabama had properly assumed jurisdiction and that it was the more appropriate forum.

Jurisdictional issues concerning interstate child custody cases are controlled by the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A (West Supp.1990), and Alabama’s Uniform Child Custody Jurisdiction Act (UCCJA), §§ 30-3-20 through -44, [569]*569Code 1975. In areas of conflict between the two, the PKPA prevails. Lyon v. Lyon, 618 So.2d 127 (Ala.Civ.App.1992). In this instance, we find no conflict between the two. We, therefore, focus our attention on the provisions of the UCCJA.

The UCCJA involves a three-step process when determining whether a state should assume jurisdiction of a custody matter. Initially, a court must determine whether it has authority, or jurisdiction, to act. Section 30-8-23 provides the guidelines for such a determination. That section provides the following:

“(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 subdivision (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.
“(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.”

If a court determines that it does not have jurisdiction under § 30-3-23, the 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). Section 30-3-27(c) provides the following:

“(e) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
“(1) If another state is or recently was the child’s home state;

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Bluebook (online)
634 So. 2d 567, 1994 Ala. Civ. App. LEXIS 21, 1994 WL 7480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mmh-v-tll-alacivapp-1994.