There is perhaps no more serious allegation between parents warring for child custody than abuse of that child. It's one in which the courts take very seriously, and the top priority is always the best interests of the child.
In the recent case of C.E. v. M.G., the Alabama Court of Civil Appeals reviewed the petition filed by a child's mother seeking a writ of mandamus compelling the lower court to vacate an earlier judgment awarding temporary custody of child to father.
Central to the juvenile court's findings were allegations of abuse and neglect made by father against mother.
The appellate court affirmed in part, reversed in part.
Back in 2008, father's paternity was formally established and, in the course of that action, court designated mother as primary physical custodian and ordered father to pay child support. This arrangement continued for nearly six years, until father filed a petition alleging child was dependent because the mother and her husband were either abusing the child or using excessive corporal punishment, to the point father observed marks and welts on child's body. He sought emergency custody.
After an initial jurisdictional transfer, the juvenile court entered a temporary custody order placing child with father on emergency basis. Court also scheduled a hearing for the following day and appointed a guardian ad litem to represent the child.
On hearing day, mother's attorney was running late due to a scheduling conflict. After waiting a period of time, court proceeded to hear both sides of the case without mother's attorney present.
After hearing evidence from both parties, court awarded father physical custody pending a final hearing and ordered stepfather not to discipline the child in any form. A final hearing was scheduled for one month later.
In the interim, mother filed her writ of mandamus, which appellate court chose to treat as an appeal. She asserted father's pleadings were not verified, the court lacked subject matter jurisdiction and the court violated her due process rights because the hearing was conducted without her attorney and she as given no notice the court would address child's dependency.
Upon review, appellate court found father's allegations fell well within the subject matter jurisdiction of the juvenile court, which has the authority to enter temporary custody on an emergency basis when the safety of a child is at issue. Further, appellate court rejected mother's assertion that father failed to verify his assertions with written and verbal evidence.
With regard to the lower court's alleged failure to provide proper notice of the dependency hearing, appellate justices did find trial court acted improperly. However, it rejected mother's argument of a constitutional violation for holding the hearing absent her attorney. Although mother had a right to an attorney and was represented by one, the court acted within its discretion by allowing attorney reasonable time to appear and continuing with the hearing when she failed to appear.
Accordingly, court affirmed the emergency custody order, but remanded with regard to the dependency finding, ordering trial court to grant proper notice to mother before proceeding with a final hearing.
Because an allegation of child abuse can have swift and severe consequences – as this case reveals – it's imperative for those involved to consult with an experienced and reliable family law attorney.
C.E. v. M.G., Jan. 16, 2015, Alabama Court of Civil Appeals