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.