Ohio Rules of Juvenile Procedure

Motion to Dismiss

IN THE JUVENILE COURT OF COUNTY, ALABAMA

IN THE MATTER OF: *

*

DOB

* A MINOR

MOTION TO DISMISS

COMES NOW , by and through the undersigned counsel, appearing for the exclusive purpose of challenging jurisdiction of this Court over this matter and moves the Court to dismiss this action due to lack of subject matter jurisdiction and/or lack of personal jurisdiction. In support of this motion, avers as follows:

1. This Court lacks personal jurisdiction over in that is not now nor has ever been a resident of the State of Alabama and does not have sufficient minimum contacts with the State of Alabama necessary for this Court to obtain personal jurisdiction over him.

The only contact has had with the State of Alabama involves visitation with the minor child who is the subject of this proceeding.

A child custody determination is an in personam proceeding requiring in personam jurisdiction over the affected parties. May v. Anderson, 345 U.S. 528, 73 Sup.Ct. 840 (1953); Ex parte Dean, 447 So.2d 733 (Ala. 1984). As this Court lacks in personam jurisdiction over , this Court is without authority to modify the prior custody decree entered by the Family Law Court of West Virginia.

2. Under both the Alabama Uniform Child Custody Jurisdiction Act (UCCJA) and the Federal Parental Kidnaping Prevention Act (PKPA), exclusive jurisdiction of this matter remains with the Family Court of West Virginia, depriving this Court of subject matter jurisdiction of this action.

The procedural history of this case, although complex, may be summarized as follows:

The petitioner, , purported to marry the respondent on June 4, 1988. One child was born of that purported union, to-wit, .

The respondent, , later learned that the petitioner was married to at least one, and possibly two other men at the time of the wedding ceremony between the petitioner and the respondent.

The purported marriage between petitioner and respondent was annulled on , by order of the Circuit Court of the City of Virginia Beach, Virginia.

The parties later agreed that the minor child would reside with respondent in West Virginia.

After the child had resided in West Virginia in excess of one year, refused to return the child to West Virginia resulting in seeking an award of custody from the West Virginia court.

Despite numerous orders from the West Virginia court directing to deliver the minor child to , refused to comply with such court orders.

Following a hearing on , was awarded temporary custody of the minor child from the West Virginia court subject to summer visitation with the respondent in Mobile from June 25, 1998, through August 1, 1998.

Contrary to the order of the West Virginia court, proceeded to file a custody petition in the Mobile County Domestic Relations Court which was dismissed by Judge Rosemary DeJuan Chambers for lack of jurisdiction on .

Subsequently, on , Judge Rosemary DeJuan Chambers entered an order explicitly recognizing and giving full faith and credit to the June 24, 1998, temporary order of the Circuit Court of , West Virginia. See Exhibit .

Subsequently, after conducting an additional hearing on , the Circuit Court of , West Virginia entered an order on November 8, 1999, regarding custody and visitation.

The present action, which originated in the Mobile County Domestic Relations Court, was filed on , seeking a change in visitation and custody.

Although your petitioner apparently advised the West Virginia court of the collateral proceedings in Alabama, has made no mention of the West Virginia court rulings on the custody and visitation matters which were pending in that court prior to her filing the present petition.

Pursuant to Ala. Code 1975, § 30-3-26, a portion of Alabama's adoption of the UCCJA:

(a) a court of this State shall not exercise its jurisdiction under this article if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this article, unless the proceed is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

As the Circuit Court of , West Virginia has explicitly assumed jurisdiction over this matter under the UCCJA, and has rejected numerous attempts by petitioner seeking to have this matter transferred to Mobile County, Alabama, this Court is required under Ala. Code 1975, § 30-3-26, to dismiss this proceeding, or at least stay this proceeding, unless the West Virginia court determines that jurisdiction is more appropriate in Alabama.

The issue of jurisdiction has already been litigated in West Virginia on several occasions, where was represented by counsel.

However, dissatisfied with that result, has filed yet another action, totally ignoring the orders of the West Virginia court, and has failed to advise this Court of the pending actions in West Virginia, which predate this action.

In addition, under the Parental Kidnaping Prevention Act, 28 U.S.C. § 1338A, this Court is deprived of jurisdiction over this action due to the prior assumption of jurisdiction by the West Virginia court, the fact that a custody petition was pending in the West Virginia court at the time the present petition was filed, and the fact that the West Virginia court continues to have jurisdiction of this matter and has specifically conferred with Alabama courts on numerous occasions indicating the intent to retain jurisdiction of this matter.

Pursuant to § 1738(A)(d), the jurisdiction of a court of a state which has made a child custody or visitation determination consistently with the provisions of this section continues as long as such court has jurisdiction under the law of such state and such state remains the residence of the child or of any contestant.

In addition, pursuant to § 1738(A)(f), a court of another state may modify a determination of the custody of the same child made by a court of another state only if (1) it has jurisdiction to make such a child custody determination and (2) the court of the other state no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

Under § 1738(A)(g), a court of a state shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another state.

As the present petition was commenced in the Domestic Relations Court of Mobile County, Alabama while a custody petition was pending in the West Virginia court, under this section, this Court is without jurisdiction to modify the West Virginia order.

Finally, under § 1738(A)(h), a court of a state may not modify a visitation determination made by a court of another state unless the court of the other state no longer has jurisdiction to modify such determination or has declined to exercise jurisdiction to modify such determination.

Clearly, under both the Alabama UCCJA and the federal PKPA, (1) because the present action was commenced during the pendency of a custody proceeding in West Virginia and (2) because the court of West Virginia has specifically assumed jurisdiction over this matter and specifically refused to relinquish jurisdiction of this matter to the Alabama courts on several occasions, and (3) because such intent has been communicated by the Family Law Master of the West Virginia court to this Court, this Court is without jurisdiction to entertain petition to modify the visitation and custody award of the West Virginia court.

As this matter is currently scheduled for a hearing on the merits on May 1, 2000, requests the Court to limit the May 1st hearing to the issue of the motion to dismiss this action and, in the event the Court determines that it may properly exercise jurisdiction of this matter, to reset a hearing on the merits in order to allow to confer with counsel and prepare appropriate testimony to respond to the petition to modify custody and visitation.

Pursuant to Ala. Code 1975, § 30-3-31(c), requests the Court to order the petitioner to pay in advance to the Clerk of Court travel and lodging expenses required for to appear before this Court.

CERTIFICATE OF SERVICE:

I hereby certify that I have on this the day of , 2000, served a copy of the foregoing on by placing a copy of same in the United States mail, properly addressed, first class postage prepaid.

___________________________________

Attorney for Respondent