LEGAL GUIDE
Written by attorney John Stanley Morgan | Sep 30, 2015

Subject matter jurisdiction in child custody cases and keeping siblings together

n order for an Alabama court to enter a binding order it must have subject matter jurisdiction. 'Subject-matter jurisdiction cannot be waived, and the lack of subject-matter jurisdiction may be raised at any time by a party or by a court ex mero motu.' 928 So.2d 1030, 1033 (citing Greco v. Thyssen M

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In order for an Alabama court to enter a binding order it must have subject matter jurisdiction. 'Subject-matter jurisdiction cannot be waived, and the lack of subject-matter jurisdiction may be raised at any time by a party or by a court ex mero motu.' 928 So.2d 1030, 1033 (citing Greco v. Thyssen Mining Constr., Inc., 500 So.2d 1143 (Ala. Civ. App. 1986)). 'A judgment issued by a trial court without jurisdiction is a nullity.' 928 So.2d at 1034 (citing Ex parte Hornsby, 663 So.2d 966 (Ala. 1995))." Ex parte Siderius, [Ms. 1120509, Nov. 27, 2013] So.3d _, _ (Ala. 2013) (some citations ommited). Ex parte M.M.T., [Ms 2130069, January 31, 2014] So.3d , (Ala.Civ.App 2014) (emphasis added) (see also J.H. v. J.W., 69 So.3d 870 (Ala.Civ.App. 2011). "'The lack of subject matter jurisdiction cannot be waived and may be raised at any time by the suggestion of a party or by a court ex mero motu.' Judgments entered without subject-matter jurisdiction can 'be set aside at any time as void, either on direct or on collateral attack.'" Ex parte James, 713 So.2d 869, 878 (Ala. 1997). In the case at bar, it was the plaintiff who filed the petition to establish paternity stating "that this action be brought against the defendant, Tiffany Nicole Strange Ross to establish paternity for said minor child” At the time the plaintiff filed his petition the undisputed testimony is that had been the defendant/mother along with the child T. L.W. had been residents of the state of Colorado for a period exceeding six (6) months next prior to the filing of the plaintiff's petition. (See also, Exhibit 1, the attached affidavit of Tiffany Ross). This fact deprives this court of subject matter jurisdiction to enter any custody order under the Uniform Child Custody Jurisdiction and Enforcement Act. (Hereinafter UCCJEA) The court lacked jurisdiction under the UCCJEA, Ala. Code §30-3B-201, which states: (a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial child custody determination only if: 1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; (2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208 , and a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and b. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships; (3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208 ; or (4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state. (c) Physical presence of a child is not necessary or sufficient to make a child custody determination. Id. (emphasis added). The undisputed evidence is that the child had been living with the defendant/mother for over two years in the state of Colorado. Therefore, only the state of Colorado possessed subject matter jurisdiction to make an initial child custody determination. (So also, Exhibit 1, attached hereto). The order ignores controlling Alabama case law regarding the separation of siblings In order for the court to separate the siblings, the court would have to conclude based on substantial evidence “that the separation will serve the best interest of the children at issue.” A.B. v. J.B, 40 So.3d 723, 729 (Ala.Civ.App. 2009); see also, Alverson v. Alverson, 28 So.3d 784, 790 (Ala.Civ.App. 2009) (Moore J., concurring in part and concurring in the result in part) (canvassing prior Alabama cases concerning the separation of siblings.) Absent a showing of compelling reasons, the separation of siblings is strongly disfavored. Mardis v. Mardis, 660 So.2d 597, 599(Ala.Civ.App. 1995); Hepburn v. Hepburn, 659 So.2d 653, 655 (Ala.Civ.App. 1995). Whatever acrimony may exist between the defendant and the plaintiff is not a compelling reason to separate siblings. The fact that the defendant asserted her rights under the law to apply for the termination of parental rights of the father/plaintiff , who contributed not one dime to support the child. while the defendant and T.L.W. lived in Colorado for approximately eighteen months (18) next preceding the filing of the plaintiff’s petition to is not a compelling reason to uproot T.L.W. from his family consisting of two (2) younger siblings, a stay at home mother and a step-father , who is honorably serving his county. The evidence in the case at bar, does not support any reason for the separation of the child from his two (2) siblings that he has known since their birth and with whom he knows only as his younger brother and little sister with whom he has grown up with. No compelling reason has been shown to justify uprooting T.L.W from the only family he has ever known. There is compelling evidence in the case at bar that separating T.L.W. from his family will result in severe emotional trauma to the child. The correct standard however for separation of siblings has been determined to be that separation of siblings is allowed only if “the separation of the siblings will serve the best interest of the children at issue.” A.B. v. J.B, 40 So.3d 723, 729 (Ala.Civ.App. 2009). As previously stated, in the case at bar, there is insufficient evidence to justify the separation of Luke Tyler Wolfe from his two (2) half siblings. In A.B. v. J.B, 40 So.3d 723 (Ala.Civ.App. 2009), which is the controlling precedent in the case at bar, the court on appeal opined: We also note that some authority supports treating the separation of half siblings differently from the separation of full siblings, ..., “However, we recognize that in many cases, half siblings may be as close as full siblings. The mere fact that they may not share the same biological parentage does not necessarily mean that half siblings do not develop the same bond as full siblings or that half siblings do not rely on each other for support. See Marriage of Swenka, 576 N.W.2d 615, 618 (Iowa Ct.App. 1998) (recognizing the strong public policy at keeping siblings, including half siblings, together following a divorce to provide the children the important benefit of maintaining familial ties and lessening the trauma of divorce) When resolving a custody dispute, particularly in these days of blended families, a trial court should not perfunctorily separate half siblings without giving sufficient consideration to the best interests of the children at issue. Id. at 729-730. Ala. Code § 26-10C-1 (1975) provides for the registration of putative fathers as follows: (a) The Department of Human Resources shall establish a putative father registry which shall record the names, Social Security number, date of birth, and addresses of the following: (1) Any person adjudicated by a court of this state to be the father of a child born out of wedlock. (2) Any person who has filed with the registry before or after the birth of a child born out of wedlock, a notice of intent to claim paternity of the child, which includes the information required in subsection (c) below. (3) Any person adjudicated by a court of another state or territory of the United States to be the father of a child born out of wedlock, where a certified copy of the court order has been filed with the registry by the person0 or any other person. (4) Any person who has filed with the registry an instrument acknowledging paternity pursuant to Sections 26-11-1 to 26-11-3, inclusive. (b) The clerk of the court which determines a man to be the father of a child born out of wedlock shall immediately notify the Department of Human Resources of the determination of paternity and include therein the information required under subsection (c) below. (c) A person filing a notice of intent to claim paternity of a child or an acknowledgment of paternity shall include all of the following: (1) The father's name, Social Security number, date of birth, and current address. (2) The mother's name, including all other names known to the putative father that have been used by the mother, Social Security number, date of birth, and address, if known. (3) The father's current income and financial information by attaching a child support obligation income statement/affidavit form to be prescribed by regulations of the department. ( 4) The child's name and place of birth, if known. (5) The possible date or dates of sexual intercourse. The person filing shall notify the registry of any change of address pursuant to the procedures prescribed by regulation of the department. The registration must be on a form prescribed by the department and signed by the putative father and notarized. The putative father may file his notice of intent to claim paternity prior to the birth of the child. (d) A person who has filed a notice of intent to claim paternity may at any time revoke a notice of intent to claim paternity previously filed and, upon receipt of the notification by the registry, the revoked notice of intent to claim paternity shall be deemed a nullity nunc pro tunc. (e) An unrevoked notice of intent to claim paternity of a child may be introduced in evidence by any party, other than the person who filed the notice, in any proceeding in which the fact may be relevant. Id. No such document was introduced . Alienation of affections was abolished as a cause of action by the legislature of Alabama in 1935. Swartz v. U.S. Steel Corp., 304 So.2d 881, 889, 293 Ala. 439 (Ala. 1974).

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