Every Friday, the Alabama Court of Civil Appeals and the Alabama Supreme Court release opinions.
As it is the duty of attorneys to keep themselves apprised of fresh cases relevant to their fields, we make a practice of reviewing, and at times briefing, cases pertaining to child welfare issues.
In this recent case, we are reminded of the potential hazards of seeking child support from an uninvolved parent.
Case Brief and Commentary by S.J. McLure: Ellis v. Duncan, February 3, 2023 (Alabama Court of Civil Appeals).
Ellis v. Duncan, CL-2022-0510, Appeal from Montgomery Circuit Court (Domestic Relations). This opinion was authored by Presiding Judge, William C. Thompson.
- The trial court must hold a hearing on any post-trial motion, if the moving party asks for a hearing. Ala. R. Civ. P. 59(g).
- Only the trial court is entrusted with determining a visitation schedule and “[t]hat judicial function my not be delegated to a third party.” Even if the third party is as qualified as Dr. Kale Kirkland.
The child in this case, E.D., was born in 2016. When E.D. was three years old, his mother, Ms. Alise Ellis, filed a “petition for a determination of paternity and custody of the child.” Ms. Ellis named Mr. Michael Wayne Duncan as the father of the child.
Mr. Duncan conceded to his parentage of the child. The Montgomery DR Court ordered that:
a. he was the legal father,
b. he pay $766 per month and $10,000 in arrearage for child support, and
c. he be afforded joint custody of and visitation with the child.
S.J. McLure’s Commentary:
As a niche child-welfare firm, we have the opportunity to interact with court systems all over the State of Alabama and other states. Before I ever knew that Rule 59(g) required the trial court to hold a hearing, I saw this rule put into practice with high efficiency by the Juvenile Court of Cleburne County Alabama. Each and every time a party filed a post-trial motion, whether or not the trial court was in the least interested in hearing the party’s argument, the trial court would schedule a 30-minute hearing.
Thirty minutes. Nothing more, nothing less.
I still think this is a good practice. There are two objectives that every officer of the court must embrace, and commit themselves to accomplishing: Doing justice and improving the community’s confidence in the judicial process. In a nutshell, those are the bed rock reasons for fair process, due process.
The professional advocates must also remember that it is their duty to ask for a hearing in their post-judgment motion. If you don’t ask, it’s questionable your client is entitled to a hearing.
My last comments comes in the form of a buyer-be-ware. If your client is a single mother, and doing just fine without the biological father, weigh the risks very carefully before you file a petition for child support. There is a wind of culture, forceful enough to blow apart the strongest of legal structures, which sees no-harm in a natural father’s year-to-year abandonment, and will afford such a father every right they wish. All they have to do is ask.
To read the opinion, click below.