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.