As a general rule, if a circuit court decides custody in a divorce proceeding, it retains jurisdiction over child custody matters until the child reaches the age of majority.1 However, juvenile courts assume exclusive jurisdiction over the question of child custody when there is a dispute between a parent and a third party as to the dependency of the child. The distinction between dependency and child-custody questions seems easy enough. But, in application, unwary persons coming to circuit court can be caught off-guard.
Under the Alabama Code, “a juvenile court exercises exclusive, original jurisdiction of juvenile court proceedings in which a child is alleged . . . to be dependent.”2 The Court of Civil Appeals recently decided that persons coming to circuit court need to do more than make sure their filings don’t use the word “dependency.” The substance of their filings must be free of allegations that the child is dependent. Because juvenile court jurisdiction over the dependency question is exclusive, any circuit court judgment will have no value.
The case, A.M v. A.K., was decided in mid-September, 2020. It is a perfect example of how complicated the distinction between a custody petition and a dependency petition can be. There, the circuit court awarded the mother custody of the child in 2007 and granted the child’s father visitation. The child’s mother died in 2016 and the maternal aunt then began caring for the child.
Two years later, in 2018, the aunt went to the circuit court seeking custody of the child. In her complaint, she claimed that the father was unfit to care for the child because he had been convicted and imprisoned in 2008 for committing a felony assault against the child’s mother while the child was present. The father did not attend the trial which occurred in June 2019. In January 2020, the circuit court awarded custody of the child to the maternal aunt.
In March 2020, the father sought to overturn the circuit court’s judgement. He argued that the circuit court lacked subject-matter jurisdiction to decide the custody of the child. He reasoned that the aunt had, in substance, filed a dependency petition and that the juvenile court therefore had exclusive jurisdiction over the custody matter. The circuit court denied the father’s motion.
On appeal, the Court of Civil Appeals agreed with the father. It acknowledged that the aunt’s custody petition in the circuit court was not an express dependency petition on its face. However, the Court reasoned that the aunt had plead that the child was dependent in the substance of her custody petition. A petition that raises the question of the dependency of a child is one that raises issues pertaining to the ability and/or willingness of the legal custodian to care, support, educate, or discharge their other responsibilities to and for the child.3
In A.M. v. A.K., the court held that “in deciding whether a pleading alleges the dependency of a child, . . . the court shall look to the substance of the pleading and not the nomenclature employed by the pleader.”4 Essentially, the court will look not only at the wording of a petition but also the meaning to determine whether the dependency of the child is raised.
By: Rebecca Smith
1 S.B. v. P.G.B., 611 So. 2d 293, 394 (Ala. Civ. App. 1992).
2 ALA. CODE 1975 § 12-15-114(a).
3 ALA. CODE 1975 § 12-15-10(8)a.2 and § 12-15-102(8)a.6.
4 M.B. v. R.P., 3 So. 3d 237, 245 (Ala. Civ. App. 2008).