Alabama Relocation: The Law Means What It Says

Alabama’s relocation act has moved the state to one end of the spectrum on forcing parents to stay close to each other. The Alabama Court of Civil Appeals has said you can’t go beyond it out of a desire to elevate substance over form.

The case is T.C. v. C.E., Case No. 2080763 (Ala. Civ. App. December 11, 2009). It’s unusual, because the custodial parent trying to relocate is Dad rather than Mom. Dad sent the required statutory notice to Mom by certified mail, including in that notice the required statement that if Mom didn’t file a proceeding to challenge the move within 30 days, the move would be permitted.

Mom’s lawyer sent Dad a letter objecting to the move within seven days, but she didn’t file anything in court for 76 days. When she did, Dad moved to dismiss the filing on the grounds that she had waited more than 30 days to file it. In the trial a few months later, the Baldwin juvenile court denied Dad’s motion to dismiss, saying: “I am not going to be that strict with a law that has had very little interpretation anywhere. I am not going to be that strict on the form stuff. I would rather deal [with] substance so I am going to deny your motion to dismiss.”

After a hearing, the juvenile court ordered Dad not to move, “because I just think it’s in the best interest for y’all to be in this place.” Dad appealed.

The appeals court began its analysis by quoting the Parent Child Relationship Protection Act (better known as the relocation act) itself, as contained in Ala. Code § 30-3-169, and the court added the emphasis shown:

The person entitled to determine the principal residence of a child may change the principal residence of a child after providing notice as provided herein unless a person entitled to notice files a proceeding seeking a temporary or permanent order to prevent the change of principal residence of a child within 30 days after receipt of such notice.”

The appeals court looked to the way the word “proceeding” was used in the other sections of the relocation act and determined that the legislature clearly intended to require that Mom file her objection with a court, not simply send what the court called an “extrajudicial” communication. And in a footnote, the appeals court noted that the actual notice Mom received from Dad about the move referred to the necessity of “filing a proceeding with the Court.”

We recognize, as the mother insists, that Alabama law reflects a general policy that children will usually benefit from contact with both parents. See Ala. Code 1975, §§ 30-3-150 and 30-3-160. However, in the specific area of child relocation, the Legislature has seen fit to confer upon a primary custodial parent the absolute right to relocate upon providing notice in conformity with the Act if no civil action objecting to the proposed relocation is initiated within 30 days of receipt of the notice. Thus, in this case, the mother’s substantive right to commence her action objecting to the proposed relocation had been extinguished at the time she brought it, and the juvenile court, in the absence of a showing of good cause or excusable neglect, had no authority to resurrect that right under the guise of not being strict as to mere matters of form. T.C. at 6.



25 comments

  1. Phillip Lackey says:

    So in other words, the mother raised a timely objection but because she didn’t get a lawyer and file a motion in court within 30 days she has no right to object? The law is clear that the philosophy of the state is that children need both parents even after a divorce. The civil court of appeals has made every effort to be pure constructionist in order to gut the relocation act. They refuse to interpet the act in light of its purpose, to keep parents local to their children. I really hope the legislature will take the necessary steps to beef up the relocation act. Divorce is tough enough for kids. Allowing parents to relocate without benefit to the children is just ridiculous..as in this case the judge found that it was in the best interest of the children that everybody stay put….but the court of appeals didn’t care about the best interest of the kids. Sad but typical!

  2. Carey L. says:

    Hi Lee:

    A while back I asked if it would be possible for you to provide some updated case law on the court’s ordering payment of college expenses under Bayliss vs. Bayliss. I would really appreciate a discussion about this as we will be taken back to Court in the very near future and would like to know how the Courts seem to be handling this matter.

    Thank you, Carey L.

  3. Out-of-Stater says:

    My wife’s ex-husband (non-custodial) parent has just claimed that because the visitation agreement does not specifically state that my wife (the custodial parent) gets the standard spring break time from 9AM Saturday to 6PM the following Saturday, he is entitled to have his daughter the first weekend of the month (this weekend). We are out of state and our spring break begins tomorrow. Have you ever heard of this reasoning? It seems to me that it’s presumed that the CP gets the child from 9AM Saturday until 6PM the following Saturday in even years, just as the NonCP gets her in the odd years.

  4. Lee Borden says:

    Ooh! Interesting question. I agree with your reasoning. Dad may be technically correct, but the clear intent is for Mom to enjoy the spring break during the alternating years. If I were Mom, I would enjoy my break and let Dad pick this fight with the judge.

  5. Sharon says:

    Question for you: If father agreed to maintain health/dental insurance on “minor child”, as well as pay 100% of costs not covered by the insurance, PLUS agreed to pay for all vision needs, once the child reaches 19 years of age but will attend college in fall (father agreed to pay 100% of college too)can he drop the child from his insurance and let the mother pay for something for a change. (Father also pays child support, 100% of private school, makes the house payment, the list goes on) Would really appreciate an answer, only 3.5 months until child is 19.

  6. Lee Borden says:

    When in doubt, obey the decree. I would think that if the decree doesn’t require Dad to provide insurance coverage for the adult child, he’s not required to continue it. However, I would also think if he cuts off the coverage, Dad will have an angry ex-wife, an angry child, and perhaps even an angry judge on his hands. I’d be willing to bet that everybody involves assumes that Dad will continue providing the insurance coverage until the child finishes college.

  7. Sharon says:

    Quite honestly, an angry ex-wife is nothing new, nor an angry child. Our question is really this: once the child turns 19, if the mother doesn’t file per the Bayliss motion to extend insurance coverage, is there anything a judge could do, angry or not? From all I read, it is out of the court’s hands then. In this case, it’s about time for Dad to be allowed to be angry, it’s not always about the mother…..

  8. Brent says:

    Hello Lee: I’m in a challenging position.

    My wife suggested we get an uncontested divorce in March, 2010. I did everything possible to thwart the divorce (and still doing bi-monthly counseling). We are 4 year residents of Shelby County, AL. We have been married 9 years and have a son, who is 5. She asked me to take a job in New Orleans back in October 2009 as a means for us to work on our marriage back “home.” She is from New Orleans. I took the job and commuted weekly. In April 2010, about a month after she filed in Jefferson county, she moved to Jackson, MS to live near her parents. Now, neither of us live in Alabama, but jurisdiction is in Shelby County. The attorneys are not even close to helping us reconcile an agreement. I feel like she’s completely abandoned me. How should I prepare myself for the court’s reaction to our situation? As it stands, she and my son are 4 hours away. I’m heartbroken and feel completely betrayed.

  9. Lee Borden says:

    If you’re a hammer, the world looks like a nail. I work with couples who are reasonably cooperative even while divorcing, so my instinct is to suggest that you and your STBX sit down together and resolve whatever it is that you disagree about, then tell your lawyers what you want written up in the papers for you to sign and get this whole nasty business finished.

    OF COURSE you feel abandoned, heartbroken, and betrayed. That’s your job. You’re the left. But even while feeling abandoned, heartbroken, and betrayed, you can also negotiate terms with this person so you can stop the bleeding and move on with your life.

    Even as I say that, I realize that your STBX may in fact be taking some extreme position that (a) is so important it’s a dealbreaker for you and (b) you and your lawyer know the judge would never accept. If so, you may have no choice to see this through with the judge. It’ll be miserable and expensive, but you and your STBX can survive that too.

  10. Brent says:

    Thank you, Lee. Everything was amicable and we had good communication the first couple weeks of March. When she retained her attorney (a noted “super attorney” four years running in BIrmingham), she was told not to communicate with me. I tried everything possible to motivate her to utilize someone in your capacity to help us navigate through the system without the use of independent counsel. Unfortunately, her father is an expert witness with significant plaintiff experience and very deep pockets. They’ve been on a course to break up our family for a couple years. They helped her posture this process. I do not have access to like-kind resources, but make good money.

    The proposed agreement drafts were moving in the right direction until the most recent draft where they wanted to quit claim deed the house to me. We own a home in Birmingham, but in a development plagued with short sales and foreclosures. Since we both work in the investment management business, a default against the property would jeopardize our ability to work. The house is currently valued at a loss in excess of $150,000. She now expects me to assume this loss. We just negotiated a 2 year lease with a family to occupy the home. That’s working out well. In every aspect of this entire divorce, I lose – with my son, financially, our home, with my wife and perhaps now my career. It’s very uncomfortable. I’ve been an excellent husband, a breadwinner and a very involved loving father. I pray a judge will restore order.

    She’s proven to be the hammer; I’m the nail.

  11. Dad says:

    Lee-

    I have been divorced for 5 years and I am a very involved dad in my three kids life. I have joint legal custody and visitation and I never miss time to spend with them. I am acitve in my community in Scouts, All Pro Dads, Coaching & etc. I meet all my financial obligations. In the past 18 months my ex has really began to pick and manipulate my time with the kids. We live in a great town with one of the best school districts in Alabama. My kids have lived here for 9 of their 10 years. I believe she wants to move 68 miles away (per map quest). Do I have a legitimat chance to stop her if she try to moves the kids away?

  12. Lee Borden says:

    Yes, but if I were advising her I would tell her to pick a different address that’s within the 60 mile radius. Then you would have no meaningful objection per the statute.

  13. Dad says:

    Thanks Lee. One more question. We had been working together on visitation and not following the agreement to the letter for 5 years…recently she now wants to follow the agreement exactly (usually when it benefits her) which changes when I get to see my kids and the time I get. It also is not specific on some issues regarding my visitation. I would like to have them more than I do now. Do I have a chance to go back to court and have the agreement changed so that I can get more time? My ex really likes having control over me with the kids.

  14. Lee Borden says:

    If you want to break her of the control, pull up the divorce decree and follow it. Then she can’t complain.

    In Alabama, think of sole custody for one parent, standard visitation for the other parent, and guideline child support as a ditch the judge will keep wanting to push you into. You can often persuade the judge to walk outside the ditch if Mom and Dad are cooperative and expressing the preference together, but when one of them comes to the judge and says the “alternative” plan, whatever it is, isn’t working, the judge is likely to want to push you back into the ditch.

  15. kristina says:

    Hi Lee, I am currently seperated from my husband of 12 years. He moved out of the home in August. We have four children ages 4,6,9 and 11. My husband moved us here to Alabama from Ca. for his job 3 years ago. What I wanted to know was first, he has already retained an attorney and they were trying to get me to sign papers and go into her office and negotiate. I told him that I would sign nothing unless I had someone to protect me and the kids. I do not have the money for an attorney so do not know what I am going to do right now but can I represent myself? I have been a stay home mom our entire marriage. I wanted the divorce because of extreme emotional abuse. My question is when we do go to court I want to move to Tennessee which is about 3 hours from here. I have no friends here and no family no babysitters nothing. My sister lives in Tenn and would be able to provide family support to me and the kids would have cousins to play with. I am in counseling twice a week for his abuse and am trying my best to stay strong and be the best parent I can be. What is the determination of a judges ruling on letting the custodial parent move out of state? Thank you~ Kristina

  16. Denise says:

    Hi Lee,
    What are the options for appealing a judge’s final ruling in Family Court? My husband was recently denied custody because according to the judge, he did not meet the McClendon standard, nor did he prove how the child would benefit from living with him over living with the mother. We provided mounds of evidence and witnesses to justify the case. Additionally, the mother perjured herself on multiple occassions and admitted to crimes (tax and mortgage fraud). One great concern was the judge would not permit more time. This unjust decision by the judge has emboldened the mother to now she is even more difficult and uses the child to get what she wants from the father, my husband. What are the options?
    Thank you – Denise

  17. Lee Borden says:

    Don’t waste any time; find one of the two or three most experienced family lawyers IN YOUR AREA (who know your judge) and buy an hour’s time with one of them to go over your husband’s case. They may decide the best option is to ask your judge to reconsider, or they may suggest you skip that and file an appeal. I can’t emphasize enough the importance of ACTING QUICKLY.

  18. Denise says:

    Lee, thank you for the quick response. My husband hired a family lawyer with 23 plus yrs experience and who is very reputable within the community. He is comfortable with her and feels she did a good job at trial. He actually received the transcript yesterday and has been combing through it. There are lies on top of lies. Unfortunately, there isn’t a smoking gun; the mother doesn’t do drugs nor is there physical harm against the child. And the mother is an actress worthy of an Oscar. How can he break through all the deception and expose the mother for who she really is? There is a lack of structure, discipline, additional education at home, and inconsistency. To complicate the matter more, the mother is having another child due Oct 20-31, 2012. This will prevent the mother from being the care giver to the child because a C-Section is involved; leaving the mother with a 6-8 week recovery period. He is desperate to get the child out of her current situation. He knows when schools starts (8/20/12) his chances are slim to none.
    Thank you – Denise

  19. Lee Borden says:

    That’s great news that your husband has an experienced lawyer whose judgement he trusts. He’s doing the right thing to read the transcript carefully, and then – QUICKLY – he needs to explore options with his attorney.

  20. Mom says:

    In your opinion, do you think a judge will award a change in custody because a child is not promoted to the next grade because of failing grades, when the child was tested for learning disabilities to include ADHD and the results are negative?

  21. Lee Borden says:

    It’s probably not that simple. No judge I know wants to make a change in custody on the basis of a single issue. Instead, print the list of custody factors here: http://www.divorceinfo.com/alcustodyfactors.htm

    Make a separate sheet for each factor and write down on that sheet what you would say about it and what the other parent would say. Then list any documents, testimony, or other evidence you think bears on the issue. You’ll finish with a notebook that you can then take to a good family lawyer. If you are thorough and objective, the lawyer can scan your notebook quickly and give you a useful evaluation of your chances.

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