Petitioning for a Writ of Mandamus is a drastic measure to take in a legal proceeding. A Writ of Mandamus is a petition from one party in a case appealing to a higher court seeking said higher court to order the court in which the case is being held in to fulfill some duty or responsibility that it is neglecting. Ex parte R.D. and D.D., 2190533 (Ala. Civ. App. June 12, 2020) shows the severity of a petition for a Writ of Mandamus, as well as the complexity of proving whether the lower court has neglected its duty.
On April 18, 2019, F.S. and D.S. (“the maternal grandparents”) filed a petition in the Jefferson County Probate Court seeking an award of grandparent visitation with their grandson (the child) under § 26-10A-30, Ala. Code 1975. The child’s mother died after the child’s birth in 2003. The father, R.D. later married D.D. (“the adoptive mother”), who subsequently adopted the child through a step-parent adoption. The maternal grandparents alleged that the father and the adoptive mother decreased their visitation with the child, and the inhibition of their relationship put the child’s health and welfare at risk.
The father filed an answer of opposition to the maternal grandparent’s petition that challenged the constitutionality of § 26-10A-30. The father and adoptive mother filed a motion seeking dismissal of the grandparents petition. The probate court denied the motion on March 1, 2020. The father and adoptive mother (referred to now as “the petitioners”) filed a Writ of Mandamus seeking that their original motion of denying the maternal grandparent’s petition be reconsidered. The petitioners argued that the Jefferson County Probate Court lacked subject-mater jurisdiction over the maternal grandparent’s petition.
The standard of review used by the appellate court is explained in Ex parte Amerigas, 855 So. 2d 544, 546–47 (Ala. Civ. App. 2003). A Writ of Mandamus will only be granted if “'(1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked.’ (Ex parte Flint Constr. Co., 775 So. 2d 805, 808 (Ala. 2000) (citing Ex parte Mercury Fin. Corp., 715 So. 2d 196, 198 (Ala. 1997))).”
Section 30-3-4.2is the standard for awarding grandparent visitation. One circumstance that this statute provides for the court to grant visitation to grandparents is if the parent’s marriage is severed by either death or divorce. However, this statute also states that it does not govern grandparent visitation if the child is the subject of an intrafamily adoption. Section 26-10A-30 determines grandparent visitation rights in situations involving adoptions by a family member, such as a step-parent. The petitioners argued that while the probate court has jurisdiction over the grandparent visitation claim against the adoptive mother under § 26-10A-30, according to C.Z. v. B.G., 278 So. 3d 1273, 1282 (Ala. Civ. App. 2018), the same does not apply to a “natural parent”, in this case the father. For this reason the appellate court denied the petition to the extent that it seeks relief on behalf of the adoptive mother.
After reviewing the complex legislative history of § 30-3-4.2, the court noted that the clear intent of legislature has been to provide a way for grandparents to petition for visitation without infringing on the rights of the natural parent. Based on Ex parte D.W., 835 So. 3d 186 (Ala. 2002) and D.T. v. W.G., 255 So. 3d 764, 767 (Ala. Civ. App. 2017), § 30-3-4.2 requires a more stringent burden of evidence for an action against a natural parent then an action against an adoptive parent under § 26-10A-30. The appellate court agreed that § 26-10A-30 was not intended for an action against a natural parent.
The probate court argued that since the father consented to the adoption of the child, he therefore consented subject-matter jurisdiction in the probate court. However, based on Espinoza v. Rudolph, 46 So. 3d 403, 413 (Ala. 2010), subject matter jurisdiction may not be conferred by consent. According to AltaPointe Health Sys., Inc. v. Davis, 90 So. 3d 139, 154 (Ala. 2012) and Lappan v. Lovette, 577 So. 2d 893, 896 (Ala. 1991) the jurisdiction of the probate court is limited to what jurisdiction it is prescribed by statute. Section 12-13-1 sets the jurisdiction of the probate court, and does not prescribe jurisdiction over grandparent visitation. Section 26-10A-3 says the probate court has jurisdiction over any proceedings that are under the Adoption Code. As has already been discussed, grandparent visitation actions against natural parents do not fall under the Adoption Code, therefore the probate court does not have jurisdiction over such an action.
The Alabama Civil Court of Appeals dismissed the petition in part, and granted in part, issuing the writ. It found that because § 26-10A-30 allows for a grandparent visitation action in the probate court against an adoptive stepparent, the adoptive mother was not entitled to the probate court granting the motion to dismiss the visitation action. However, because in § 26-10A-30 or § 30-3-4.2 a grandparent visitation action against a natural parent is not permitted in the probate court, and § 30-3-4.2 dictates that such an action should be made in the circuit court, that the natural father is entitled to relief by a Writ of Mandamus. The appellate court issued the writ ordering the probate court to grant the father and natural mother’s motion to dismiss the grandparent visitation action.
The Alabama Civil Court of Appeals found that the Jefferson County Probate Court did not have jurisdiction over a grandparent visitation action against the father, and therefore it failed to fulfill it’s duty to father in denying the motion to dismiss the grandparents petition pertaining to the father. The question is not wether the grandparents had a reasonable claim against the father, but whether the court had the jurisdiction to consider such a claim. This case shows just how drastic of a measure petitioning for a Writ of Mandamus is, and the complex legal discussion that can ensue.
Brennan DePace was born and raised as a pastor’s child and has carried with him the strong Biblical values passed on from his father. DePace is the youngest of five children who received a rigorous and thorough home-schooled education. He is now a Freshman at Auburn University at Montgomery studying History, with the hopes of attending law school and becoming an attorney. DePace serves as Legal Assistant to the Hon. Samuel J. McLure of The Adoption Law
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