\___ So. 3d \___ (Ala. App. 2013)
Kenneth Eugene Gray and Jenifer Lee Gray married in Florida in January 2009 and moved to Alabama in January 2010.1 On July 25, 2010, the mother left the marital residence and relocated to Michigan while pregnant with the parties' child. The father filed for divorce in the Tallapoosa Circuit Court on September 3, 2010. The mother gave birth to the child in Michigan on October 26, 2010.2
On June 13, 2011, the mother moved to dismiss the father's action, asserting that the Alabama trial court lacked jurisdiction under the UCCJEA. She submitted an affidavit stating she had left Alabama in July 2010, the child was born in Michigan, and the child had never been to Alabama.3 The Alabama trial court denied the motion on August 1, 2011, and denied her motion for reconsideration in November 2011.4
The case proceeded to a trial in November 2012, at which the mother appeared only through counsel.5 Only the father testified at trial.6 The Alabama trial court entered a judgment on November 19, 2012, in which it divorced the parties, awarded the parties joint legal custody of the child, awarded the mother physical custody of the child, awarded the father visitation privileges, and ordered the father to pay child support.7 The father timely appealed the award of physical custody to the mother.8
Neither party raised the issue of subject-matter jurisdiction on appeal. The Court of Civil Appeals of Alabama considered the matter ex mero motu because jurisdictional issues may be noticed at any time.9
Whether the Alabama trial court had subject-matter jurisdiction under the UCCJEA to make an initial child-custody determination regarding a child who was unborn at the time the divorce action was commenced?10
Under the UCCJEA, a court of this state has jurisdiction to make an initial child-custody determination only if this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.11
A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208. In that event the child and the child's parents, or the child and at least one parent or a person acting as a parent, must have a significant connection with this state other than mere physical presence. Substantial evidence must also be available in this state concerning the child's care, protection, training, and personal relationships.12
All courts having jurisdiction under subdivision (1) or (2) must have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208.13 No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).14
The home state is defined in § 30-3B-102(7) as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.15 In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned.16 An unborn child has not lived from birth in any state and therefore cannot have a home state at the time of commencement.17 Jurisdiction is instead determined after birth based on the pleadings of the parties and the undisputed evidence as to the date and location of the child's birth.18
No. The father commenced the divorce action in the Alabama trial court on September 3, 2010, while the mother was pregnant and residing in Michigan after leaving Alabama on July 25, 2010. The child was born in Michigan on October 26, 2010, and has lived there with the mother since birth, never having been to Alabama.19 Because the child was unborn at commencement, no home state existed at that time under the UCCJEA definition, and the determination was properly deferred until birth.20 Michigan therefore became the child's home state, satisfying § 30-3B-201(a)(1) for Michigan but not for Alabama.21
The Alabama trial court could not exercise jurisdiction under § 30-3B-201(a)(2) because Michigan has home-state jurisdiction and has not declined to exercise it on forum non conveniens or unjustifiable conduct grounds.22 The same absence of a declination by Michigan precludes jurisdiction under § 30-3B-201(a)(3).23 Jurisdiction under § 30-3B-201(a)(4) is unavailable because Michigan has home-state jurisdiction.24 The Alabama trial court therefore lacked subject-matter jurisdiction to enter the child-custody provisions of its November 19, 2012 judgment.
The Alabama trial court did not have subject-matter jurisdiction under any provision in the UCCJEA to make an initial child-custody determination regarding the child, and its judgment is therefore void.25 The appeal must be dismissed with instructions to set aside that portion of its divorce judgment containing the child-custody determination regarding the parties' child.26