DeKalb
Circuit Court, CV-19-900182
On
Application for Rehearing
PETITION FOR WRIT OF MANDAMUS
DONALDSON, Judge.
The
opinion of October 4, 2019, is withdrawn, and the following
is substituted therefor.
Yaditxza
Vega-Lopez ("the mother") petitions this court for
a writ of mandamus directing the DeKalb Circuit Court
("the trial court") to dismiss the underlying
action initiated by Terry Potts for lack of personal
jurisdiction, subject-matter jurisdiction, and temporary
emergency jurisdiction. Because the materials presented
establish that the trial court lacks personal jurisdiction
and temporary emergency jurisdiction, we grant the petition
and issue the writ.
The
materials submitted by the parties indicate the following. On
June 10, 2019, Potts filed a verified complaint in the trial
court against the mother seeking temporary and permanent
custody of R.I.P. ("the child"). In the complaint,
Potts alleged, in relevant part:
"1. [Potts] is over 19 years of age and a resident of
DeKalb County, Alabama, having been a bona fide resident of
DeKalb County, Alabama for more than six months preceding the
filing of this petition.
"2. [The mother] is over 19 years of age and a resident
of the state of Georgia, having been a bona fide resident of
the state of Georgia for more than six months preceding the
filing of this petition.
"3. [Potts] is the natural father of [the child]. [The
child] resides [sic] in DeKalb County, Alabama since
February, 2019. [The child] has resided in Alabama for more
than 4 months of the last 6 months and Alabama is considered
her 'home state' for custody determination.
"4. [The mother] is the natural mother of [the child].
"5. The parties were never married and no previous court
orders have been entered.
"6. [Potts] is a fit and proper person to have the full
care, custody, and control of the minor child. [Potts] is
ready, willing, and able to take custody of the minor child
and provide for the daily financial and emotional needs of
the minor child.
"7. The mother was fired from 4 out of the last 5 jobs
she undertook and quit 2; her boyfriend is a felon who abuses
drugs and alcohol daily; was part of an international federal
drug case in Brooklyn involving many of her family; her
residence is unknown but, in any event, does not have a
working washer and dryer; sought pain pills and smokes
marijuana; neglects [her] children and especially the child
of this action; she skips and forgets to give the children
their prescribed medications; has caused [another one of her
children] to have a very high number of unexcused absences
and tardiness; punches [another one of her children] in the
face and chest causing [that child] to cry; and is otherwise
unfit to have the care, custody and control of [the child].
"8. [Potts] fears for the safety of [the child if] he is
not awarded temporary custody."
On June
12, 2019, the trial court entered an order granting
"temporary custody" of the child to Potts. On June
24, 2019, an attorney for the mother entered a limited
appearance for the sole purpose of contesting the trial
court's jurisdiction in the action. On that date, the
mother filed a motion to dismiss, arguing that the trial
court lacked personal jurisdiction over her because the only
contact she had with Alabama was that the child occasionally
visited with Potts in the state. The mother also argued that
the trial court lacked subject-matter jurisdiction and
temporary emergency jurisdiction. In the motion, the mother
asserted, among other things, that she was a resident of
Georgia, that she had never resided in Alabama, that the
child was born in Georgia, that the child attended day care
in Georgia, and that the child had never had any contacts
with Alabama until Potts had moved to the state approximately
six months earlier. The mother did not contest that Potts was
the natural father of the child but noted that the
child's paternity had not been previously adjudicated.
The mother denied any allegations that she is unfit to
exercise custody of the child, that she has a boyfriend, that
she was involved in a criminal case in New York, that her
residence is unknown to Potts, that she sought pain pills or
smoked marijuana, that she neglected or abused her children,
including the child in this case, or that the child faced any
danger while in her custody. The mother asserted that there
was no emergency basis that would permit the trial court to
exercise temporary emergency jurisdiction. The mother also
asserted that a custody action regarding the child had been
initiated in Georgia. On June 26, 2019, the mother filed an
amendment to the motion to dismiss by adding her sworn
verification of the factual assertions.
On June
26, 2019, the trial court conducted a hearing on the
mother's motion to dismiss. At the hearing, the
mother's attorney argued that the trial court lacked
personal jurisdiction over the mother, subject-matter
jurisdiction over the action, and temporary emergency
jurisdiction. Specifically, the mother's attorney argued
that the allegations in the father's complaint were
insufficient to establish that an emergency situation had
invoked the trial court's temporary emergency
jurisdiction. She also informed the trial court that a
custody proceeding had been instituted in Georgia and that,
if the court was assuming ...