Fill and Sign the Ohio Rules of Juvenile Procedure Supreme Court of Ohio Form

IN THE JUVENILE COURT OF _________________ COUNTY, ALABAMA IN THE MATTER OF: * * _________________________*CASE NO.: _____________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 January 5, 1993, 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 June 24, 1998, ___________________ 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 September ________. Subsequently, on October 6, 19__, 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 October 20, 19__, the Circuit Court of ________________, West Virginia entered an order on November 8, 1999, regarding custody and visitation. Specifically, that order acknowledged ___________ representation to the Court that she had again filed a motion to modify visitation schedule and remove venue of the proceedings for this matter to Mobile County, Alabama. In that order, the Court specifically found that jurisdiction had been specifically assumed by the Court of West Virginia on a previous occasion and that the matter of jurisdiction and venue had been litigated and resolved pursuant unto the Uniform Child Custody Act between the Circuit Court of Mobile County, Alabama and the Circuit Court of Hampshire County, West Virginia. Subsequent to the ruling by the West Virginia Circuit Court, on December 29, 1999, Judge Rosemary DeJuan Chambers entered an order purporting to transfer the pending motion to modify custody and visitation schedule to this Court by order dated January 6, 2000.The present action, which originated in the Mobile County Domestic Relations Court, was filed on ______, seeking a change in visitation and custody. Although not mentioned in the petition filed by___________, at the time said petition was filed, a custody petition was pending in the Circuit Court of Hampshire County, West Virginia. 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.II 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. In the present case, the court of West Virginia has explicitly retained jurisdiction of this case and has explicitly indicated its intent to continue jurisdiction of this case and to not relinquish such jurisdiction to the courts of Alabama. 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.Respectfully submitted.______________________________ Attorney for RespondentP.O. BOX _____MOBILE, ALABAMA _____(334) ________________ 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