The Alabama Court of Civil Appeals has reversed a trial court’s transfer of custody from the mother to the father after two hearings. The trial court in Ex parte Russell, Case No. 2031146 (Ala. Civ. App. April 29, 2005) had mistakenly been informed in the first hearing that the mother had already been served with process, when she had in fact not been served.
It’s not clear whether the court heard any testimony, but at the conclusion of the hearing it ordered custody transferred to the father. When the court learned later that day that the mother had not been served, it simply redesignated the order as ex parte. The father took custody of the child at the child’s school later that day. When the mother learned that the father had taken custody, she moved the trial court to reconsider, and the trial court set the case for a hearing a few days later (remember, still no service on the mother).
At the hearing, the trial court did not receive any evidence. Instead, it heard arguments from the parties’ lawyers and asked them about the facts alleged in the father’s petition and motion. No one testified under oath. At the conclusion of the hearing, the trial court wrote that “Court keeps status quo of minor child” — meaning maintaining custody with the father.
In its opinion, the Appeals Court said the first hearing was defective because it occurred ex parte and with no evidence on the record that the actual health and physical well-being of the child was in danger.
The trial court could have remedied this defect had it vacated its order and heard testimony in the second hearing. The trial court didn’t do this, however, hearing only arguments from the respective attorneys before it continued the status quo from the first order.
Because the second order was unsupported by any evidence (as opposed to argument), it violated the mother’s due-process rights. Consequently, the Appeals Court issued a writ of mandamus directing the trial court to vacate the second order. For authority, it relied on Bamberg v. Bamberg, 441 So. 2d 970 (Ala Civ. App. 1983).