An orphan is a vulnerable child left without adequate familial provision and protection from evil. There is real evil in the world – evil that will always seek to abuse, neglect, and rob vulnerable children. Orphan-Care Law is that body of law that relates to addressing and alleviating the affliction of these vulnerable children.
This week, Alabama’s appellate courts released three new opinions that affect orphans and their families.
In the first case, Rasha Alsaikhan v. Ahmed Alakel, 2130870, (Ala. Civ. App. 2015), Alakel (“the husband”) filed for divorce from his wife, Alsaikhan. The husband did not mention seeking custody of their children in his complaint.
The wife, however, did seek custody of their children—and as a result the husband filed an amended complaint to seek custody of the children.
The big complicating factor in the case was the issue of subject-matter jurisdiction, which is whether or not the court has the authority to hear a given case. This issue was introduced into the case by the wife’s subsequent counterclaim, in which she filed a motion to dismiss due to the lack of subject-matter jurisdiction.
This claim was introduced because of the wife’s statement that they were both citizens of Saudi Arabia, in the U.S. on student visas with no intention of domicile (domicile is the legal term for a permanent home) in the U.S. Therefore, she argued that her husband’s divorce action did not have subject-matter jurisdiction in that particular trial court.
The issue of subject-matter jurisdiction is where this case got messy, and ultimately, where it ended. Although the trial court purported to divorce the parties (including jointly sharing child custody, property, etc.), the wife filed a postjudgement motion to bring up the subject-matter jurisdiction issue again. The couples’ joint intention to return to Saudi Arabia emerged as a particularly relevant issue, given that: “ ‘ [A] domicile, once acquired, is presumed to exist until a new one has been gained “facto et animo” . . . And in order to displace the former, original domicile by the acquisition of one of choice, actual residence and intent to remain at the new one must concur. “Domicile of choice is entirely a question of residence and intention, or, as it is frequently put, of factum and animus.” . . . (Jacobs v. Ryals, 401 So. 2d at 778 (quoting Ex parte Weissinger, 247 Ala. 113, 117, 22 So. 2d 510, 513-14 (1945)).
There were some issues of “she said” vs. “he said,” but in the end the Court of Civil Appeals did not find enough evidence to support that the wife was an Alabama resident, and therefore, in order to have jurisdiction the Court needed evidence of the husband’s residence or domicile in Alabama. The Court found no such evidence, and therefore the case could not move forward. This case demonstrates the importance of knowing, prior to filing, that one unquestionably has subject-matter jurisdiction. Otherwise, it will be a lot of effort and money lost for naught!
In J.B. and K.B. v. J.M., 2130648 (Ala. Civ. App. 2015), J.B. and K.B. were the legal custodians of a child. The record did not reveal exactly how they obtained custody, but at some point the child’s maternal grandmother intervened to get custody in the juvenile court, where she was able to get visitation. The custodians then filed a petition for adoption in the probate court, which was granted to them.
As an aside, it is important to know that in the past there have been jurisdictional “turf wars” between the juvenile court and the probate court. Adoption has historically occurred in the probate court, which until 1849 was known as the “orphan’s court” in Alabama – since it was the court that provided legal protection for vulnerable children who did not have parents to care for them.
After the adoption was granted, the grandmother moved the probate court to have the adoption set aside. The probate court transferred that motion over to the juvenile court, which determined that the adoption should be set aside because there was not proper notice; the grandmother was not given proper notice as required by Ala. Code 1975, §26-10A-17(a)(6).
The mistake that the custodians of the child made after that was that they did not appeal the juvenile court’s judgement that the adoption be set aside—so when they brought the case up for review, the appellate court could not consider their challenge.
The juvenile court subsequently granted the maternal grandmother visitation. The main take-away from this case is that attorneys need to make sure to know what needs to be appealed, and to appeal correctly. Mistakes such as this one could have serious consequences.
The last case we are looking at today is D.D.P. v. D.M.B. et al., 2130686 (Ala. Civ. App. 2015). This case deals with a father who was at war in Iraq, a mother and step-father who were allegedly abusing a child, and the biological father’s parents attempting to get custody of said child.
In April 2010, the juvenile court found the child dependent. Three years later, the court finally ended up at the dispositional hearing. The mother’s attorney came forth with the argument that there was not a current finding of dependency—the dependency was found three years ago. Initially, the court did not accept this argument and said that they were going to award custody to the biological father.
However, upon review by the Court of Civil Appeals, the three-year-old declaration of dependency did not hold up, especially given DHR’s findings that the allegations against the biological mother were “not indicated”on September 2011: “In ruling at the outset of the January 2013 hearing that the juvenile court would adhere to its nearly three-year-old oral declaration regarding the child’s dependency –– a declaration that was rendered suspect by the intervening “not indicated” finding by DHR as evidenced by the mother’s September 2011 motions –– the juvenile court deprived the mother of an opportunity to impeach the correctness of that earlier oral determination of dependency, cf. Rule 54(b), Ala. R. Civ. P. (under which “any order or other form of decision … which adjudicates … the rights and liabilities of fewer than all the parties … is subject to revision at any time before the entry of” a final judgment), as well as denying her the opportunity to demonstrate that, in any event, the child was no longer dependent under Alabama law.”
Once again, we are faced with the importance of meticulous attention to detail in resolving child custody matters.
Photo by libertygrace0.
