Jurisdiction

[angus161]

What is the name of your state? alabama and florida?


I am the cp of my 4 year old son. He has lived in alabama since the day he was born. On October 11 of 2005 his mother took him from my home and went to her mothers home 20 miles away in florida. In the following days i spoke to a couple of attorneys both in florida and alabama, and was advised to file for custody in florida. On 10/26/05 i filed in florida and after 2 drug arrests,2 custody hearings and 1 year of time i finally got custody.

A judge in florida stated that my son was unjustifiably taken from home and had grave concerns about my exs(we were never married) drug use. In the same breath he ruled that visitation be unsupervised and done every other weekend. Since that ruling she has been arrested for violation of probation. I do not want to go back to the judge in florida which leads me to my question "Who has jurisdiction over my child." I know I should have filed the first pleading in alabama as it is his home state but i screwed up. And what do you think the chances of me getting it moved to alabama are. Also what should i go for tpr or sole custody?What is the name of your state?

 

[CourtClerk]

Florida currently has jurisdiction. Where is the child now in Alabama?

 

[angus161]

There was a rotating custody order in april of 06 (1 week in fl and then one in al) and the final order was nov 3 06 . He has been in my care since the order in Nov. October of 05 till april of 06 i had him on the weekends. March 06 was her first arrest and September 06 was her second. So you can see that the judge after her first arrest gave rotating and after her second arrest gave unsupervised.

 

[angus161]

Sorry about the long answer . He is in alabama

 

[TheGeekess]

This is Alabama State Law:
"Section 26-18-7
Grounds for termination of parental rights; factors considered; presumption arising from abandonment.

(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:

(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.

(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.

(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.

(4) Conviction of and imprisonment for a felony.

(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.

(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.

(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:

a. Murder or voluntary manslaughter of another child of that parent.

b. Aiding, abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of another child of that parent.

c. A felony assault or abuse which results in serious bodily injury to the surviving child or another child of that parent. The term "serious bodily injury" means bodily injury which involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

(8) That parental rights to a sibling of the child have been involuntarily terminated.

(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:

(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.

(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.

(3) Failure by the parents to maintain consistent contact or communication with the child.

(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.

(c) In any case where the parents have abandoned a child and such abandonment continues for a period of four months next preceding the filing of the petition, such facts shall constitute a rebuttable presumption that the parents are unable or unwilling to act as parents. Nothing in this subsection is intended to prevent the filing of a petition in an abandonment case prior to the end of the four-month period.
(Acts 1984, No. 84-261, p. 442, §7; Act 97-851, p. 138, §1; Act 98-370, p. 670, §1.)"

Grounds for termination of parental rights; factors considered; presumption arising from abandonment
http://www.legislature.state.al.us/CodeofAlabama/1975/26-18-7.htm

Also:
Alabama Uniform Interstate Family Support Act
http://www.legislature.state.al.us/CodeofAlabama/1975/129573.htm

Alabama Uniform Child Custody Jurisdiction Act
http://www.legislature.state.al.us/CodeofAlabama/1975/128972.htm

 

[angus161]

I have done some research and found that in alabama drug and alcohol abuse is grounds for termination of parental rights where as florida it is not. That is why i want the jurisdiction moved to alabama. I feel that it is detrimental to my sons health for her to be a part of his life. I have retained a lawyer who is going to give me a motion to file tuesday in the florida court to try to get jurisdiction moved. I just really would like ya'lls opinion on what you think my chances are and what i should go for in the modification

 

[LdiJ]

I have done some research and found that in alabama drug and alcohol abuse is grounds for termination of parental rights where as florida it is not. That is why i want the jurisdiction moved to alabama. I feel that it is detrimental to my sons health for her to be a part of his life. I have retained a lawyer who is going to give me a motion to file tuesday in the florida court to try to get jurisdiction moved. I just really would like ya'lls opinion on what you think my chances are and what i should go for in the modification

You can talk to a local attorney, but I don't think that you are going to be able to get jurisdiction changed to AL. Yes, you should have filed in AL to start with, but you didn't, you filed in FL, accepting FL's jurisdiction, and your son lived there long enough to establish it by residency.

The only exception to that would be if mom no longer lives in FL.

 

[angus161]

The mom is currently incarcerated in florida.

 

[Ohiogal]

Then jurisdiction remains in Florida where it never should have been anyway except for the fact that YOU consented to it being there.

 

[angus161]

How many criteria do you think i would have to meet under section 207 of the UCCJEA before florida would determine it is now an inconvenient forum.

I went to pick up my son after a weekend visit with his mom and when he got out of the vehicle i smelled pot smoke. I did not say anything until the next morning when i called her probation officer. Her probation officer reported it to department of children and families in florida. DCF then contacted me and said they could do nothing cause the child was in alabama. DCF then contacted DHR in alabama and they came out to my house we talked and they said they couldnt stay her next visitation cause the order came out of Florida. Luckily the probation officer came through and searched her residence and found pot and meth. So i hope you can see the pickle I am in

 

[Ohiogal]

Florida will not be an inconvenient forum until neither parent lives there.

 

[angus161]

OG you have made it clear that you don't think it can be moved but i am going to file a petition to transfer. i just wanted to ask you how this sounds.



comes now the petitioner/father pro se and respectivly petition this honorable court to transfer the above styled case to________ alabama and as grounds therefore would show unto the court as follows

1) that on the 26th day of october 2005 a case was filed by the p/f in the circuit court of _______________ county florida

2)that since that time a hearing has been held and the case was adjudicated on the 29th day of noivember,2006,granting custody of the minor child to the p/f

3)that on the 30th day of october 2007 the p/f discoverd that the mother was useing illegal drugs and contacteddcf in florida. After making contact with the dept. the p/f was informed that they could not aact on an allegation of drug abuse due to the child living in alabama

4)that the p/f then contact the dhr in alabama and was informed that they could not acton the allegationof illegal drug use because the case was being heard in the state of florida

5)That in the interest of the minor child and protecting the safety and well being of the minor child the case should be transferred to alabama where the minor child resides with his p/f

6)That dhr can open a case and provide the proper services to insure that the minor child is not being exposed to illegal drug use.

7)jurisdiction could be properly maintained within alabama because the minor child is living in alabama and was living in alabama prior the filing of the case in florida

8)that the p/f has asked the court in ___________county alabama if they would be willing to accept jurisdiction if this honorable court found that it was due to be transferred and the court advised the p/f that they would accept said case.



Also no one has answered on what they thought i should go for in my modification of custody/visitation

 

[Ohiogal]

OG you have made it clear that you don't think it can be moved but i am going to file a petition to transfer. i just wanted to ask you how this sounds.



comes now the petitioner/father pro se and respectivly petition this honorable court to transfer the above styled case to________ alabama and as grounds therefore would show unto the court as follows

1) that on the 26th day of october 2005 a case was filed by the p/f in the circuit court of _______________ county florida

2)that since that time a hearing has been held and the case was adjudicated on the 29th day of noivember,2006,granting custody of the minor child to the p/f

3)that on the 30th day of october 2007 the p/f discoverd that the mother was useing illegal drugs and contacteddcf in florida. After making contact with the dept. the p/f was informed that they could not aact on an allegation of drug abuse due to the child living in alabama

4)that the p/f then contact the dhr in alabama and was informed that they could not acton the allegationof illegal drug use because the case was being heard in the state of florida

5)That in the interest of the minor child and protecting the safety and well being of the minor child the case should be transferred to alabama where the minor child resides with his p/f

6)That dhr can open a case and provide the proper services to insure that the minor child is not being exposed to illegal drug use.

7)jurisdiction could be properly maintained within alabama because the minor child is living in alabama and was living in alabama prior the filing of the case in florida

8)that the p/f has asked the court in ___________county alabama if they would be willing to accept jurisdiction if this honorable court found that it was due to be transferred and the court advised the p/f that they would accept said case.



Also no one has answered on what they thought i should go for in my modification of custody/visitation

Alabama DHR is not going to do anything unless the child is CURRENTLY being abused by you. Unless the child is currently being abused you are not going to get anywhere. The time to dispute jurisdiction of Florida was when the case was FIRST filed in jurisdiction. YOU HAVE WAIVED THE JURISDICTIONAL ARGUMENT BY CONSENTING TO FLORIDA HAVING JURISDICTION. Good grief. Stone. OP. Meet. The same. Head banging icon ANYONE?