In Which County Do I File to Modify? Part 2

Yesterday we talked about how to know which county’s court to use in filing a divorce in Alabama. Today the focus is on which county’s court to use when it’s time to file to modify a divorce to change child support, post-minority benefits, child custody, or visitation. As we discussed yesterday, this concept is called “venue.”

Ala. Code § 30-3-5 addresses the question of venue for post-divorce matters involving children. Here’s what it says:

§ 30-3-5. Venue for certain petitions

Notwithstanding any law to the contrary, venue of all proceedings for petitions or other actions seeking modification, interpretation, or enforcement of a final decree awarding custody of a child or children to a parent and/or granting visitation rights, and/or awarding child support, and/or awarding other expenses incident to the support of a minor child or children, and/or granting post-minority benefits for a child or children is changed so that venue will lie in: (1) the original circuit court rendering the final decree; or (2) in the circuit court of the county where both the current custodial parent or, in the case of post-minority benefits, where the most recent custodial parent, that parent having custody at the time of the child’s attaining majority, and the said child or children have resided for a period of at least three consecutive years immediately preceding the filing of the petition or other action. The current or most recent custodial parent shall be able to choose the particular venue as herein provided, regardless of which party files the petition or other action.

So let’s say John and Mary have completed their divorce in Shelby County, that the children will live with Mary, and now Mary has moved to Jefferson County and John to Escambia County. Let’s say that John files in Escambia County to reduce child support.

Can Mary cause this case to be removed to Shelby County, the original county rendering the decree? Absolutely. Can she cause it to be removed to Jefferson County? Do you need more information? Yes you do, don’t you? You need to know how long Mary and the child have resided in Jefferson County. If they have resided in Jefferson County for three years or more, she can remove it to Shelby County or to Jefferson County. If she and the child have resided in Jefferson County for less than three years, she can remove the case only to Shelby County.

Can Mary elect to leave John’s claim in Escambia County and litigate it there? Escambia County clearly doesn’t satisfy § 30-3-5, because it is neither the original court rendering the decree nor the county where Mary and the child have lived for at least three years. However, the answer to the question is yes; Mary can (simply by answering without challenging venue) waive her objection to venue, and the case can proceed in Escambia County.

So now you know what this means for Mary. She cannot file an answer and litigate for a while in Escambia County, and then seek to have the case removed to another county. If she has an objection to venue, she must raise it when the case begins, before she files an answer in court.

Let’s say John files for modification in Jefferson County and that Mary and the child have lived there for more than four years. Can Mary remove the case to Shelby County even though she would be moving the case away from the county where she lives? Yes, she can, because she gets to choose among the permitted venues. Can she remove the case to Escambia County? No, because it’s not one of the alternatives permitted by § 30-3-5.

So far so good. So what happens now if John has moved to Nashville. No change, right? That’s right. John can still file in any county he wants, but Mary will be able to remove it to her choice of Shelby County or Jefferson County.

What happens if Mary is the one who now lives in Nashville and John in Escambia County? John can file in Escambia County, but Mary can if she wishes file to remove it to Shelby County.

18 comments

  1. awscott1 says:

    From your blog: “What happens if Mary is the one who now lives in Nashville and John in Escambia County? John can file in Escambia County, but Mary can if she wishes file to remove it to Shelby County.”

    Can Mary file in Nashville (Davidson County), TN?

  2. Amy Ferrett says:

    my ex filed for divorce in 10-00 and my son and i moved to ohio in 7-00 and the divorce was not final until 12-00 and the judge issued achild support order for a child that is no longer a resident of alabama,how can i move my child support order
    to ohio to collect arrears from my ex. my ex no longer lives in that county he move 3 years ago to a new county. can i file for a change of venue in the state of ohio or do i file in the new county where my x now lives?

  3. Lee Borden says:

    Once Alabama has jurisdiction for purposes of child support, UIFSA (Uniform Interstate Child Support Act) says that Alabama retains continuing and exclusive jurisdiction of the case as long as either parent or the child lives there. So your case stays in Alabama until Dad moves out of the state.

    Venue according to Ala. Code § 30-3-5 will lie in your choice of (a) the original county rendering your decree or (b) the county in Alabama where you and the child have lived for the last three years. Because you do not now live in Alabama, the second choice is meaningless, so venue lies in the county that rendered your decree.

    Note that venue can be waived. So it’s possible you could file in the county where Dad lives now even though it’s not contemplated by statute. If Dad responds without objecting to venue, the case will stay in the county where you file.

  4. Nicole Barnes says:

    Original jurisdiction is in Fl. Kids have lived in TN for over 3 years with me and their father. Their birth mother lives in FL but a different county than the jurisdicion. But now she may be moving to TN.
    My question is if we chose to object and keep the case in FL could we? Could she have it moved to TN – other than by filing and us not responding to the change of venue issue?
    On the flipside – if we wanted to move it to TN, would it be as easy as filing in TN without her objecting? I was under the impression the UIFSA made change of venue require a hearing with both parties.
    Any insight you have is appreciated.

  5. Cecile Hasselbrink says:

    When divorce and child support decrees were declared in California, can custodial parent choose to pursue child support increase in the California court even though non-custodial parent now lives in FL and custodial parent resides in AL (both for at least 6 years)?

  6. Lee Borden says:

    Under UIFSA, CA had continuing exclusive jurisdiction as long as one of the parents or the child lived there. Now that this is no longer the case, jurisdiction shifts to the home state of the child, in this case (I gather) FL.

  7. Dan says:

    My ex-girlfriend has moved to Alabama about 5-6 years ago, to Mobile. We have a 14 year old daughter, which she will not allow me to speak to her on the phone and makes up excuses.
    I reside in Kentucky and have now for 12 years.
    She called me and said that she was filing a change of venue to be changed to Alabama.
    The state of Kentucky has the case here. I am current on my child support and have been for 12 years.
    My question is with the case being under Kentucky jurisdiction and I still live here,
    can she get the change of venue changed to Alabama?

  8. Lee Borden says:

    It seems unlikely. There are two uniform acts that are relevant here, the Uniform Interstate Family Support Act and the Uniform Child Custody Jurisdiction and Enforcement Act, both having been adopted by both KY and AL. Under UIFSA, KY has exclusive and continuing jurisdiction over this case as long as either parent or the child continues to reside there. Because that’s the case, that one seems clear.

    UCCJEA is a tad less certain, because UCCJEA includes a procedure whereby the court where the new filing occurs (in your case, in Mobile) has direct contact with the court having the original case (where you live in KY), and the KY court has a chance to let the case go. It’s probably prudent to have a quick chat with the lawyer who helped you with the case in KY just to make sure you have your powder dry, but my uninformed guess is that this one’s staying where it is.

  9. Mr. Ross says:

    If an original case was filed in Talladega with DHR can it be transferred to Anniston without notifying DHR in Talladega? DHR in Anniston says they do not have jurisdiction; however, the mother lives in Anniston, but has never transferred the case. Now she has filed a modification for child support with the court and is using an attorney in which she has asked me to pay for. Can she do this? She could have either went through DHR in Anniston or Talladeaga for the modification…I’m confused..

  10. Cecile Hasselbrink says:

    I see that my question is still posted here, but cannot open any response to it. So my question is still unanswered. Can you confirm that I can file for modification anywhere I choose – i.e., current home or California?

    When divorce and child support decrees were declared in California, can custodial parent choose to pursue child support increase in the California court even though non-custodial parent now lives in FL and custodial parent resides in AL (both for at least 6 years)?

  11. Rachel says:

    My ex and I were never married, in fact he is not on the birth certificate of our now 4 year old (will be 5 in November). The original order for our custody case was filed in Shelby County in April of 2005, the child and i relocated to Baldwin County in May of 2005. The order was filed/recorded in November of 2005. I did move back to Shelby County for less than 6 months in 2007 to give birth to my 2nd child. We moved back to Baldwin County and have been here ever since. Is there a way to get our order/case moved to baldwin county before i go to file a Modification of the original order? What is the normal time period between reviews/modifications of orders?

  12. Lee Borden says:

    I’m guessing the answer is no, not until you and the child have lived in Baldwin County for at least three consecutive years. Do you disagree?

  13. John Doe says:

    In the case where two parties lived together in Tuscaloosa County and Jefferson County while married for the first six years of their child’s life and while living together in Jefferson County separated the mother and child then moved in with the Grandparents in Pickens County for the last 14 months and while living in Pickens County the mother passes away unexpectedly then the Grandparents file for an ex parte temporary custody petition in Pickens County and the judge signs it without even notifying the father of the child, does Pickens County have venue? If not can a motion be filed to disolve the petition?

  14. Michelle T says:

    Lee, I know when you file for divorce that the notice is in the county papers, so if my husband and I live in Jefferson County, and you file in Elmore County, will the divorce notice go in Jefferson, Elmore or both?

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