Unfortunately divorce is rather common with over half of marriages ending in divorce these days also more and more couples are having children outside of marriage. Probate courts in florida traditionally deal with marriage while the family courts deal with custody issues and other “family” disputes. A recent case out of the Supreme Court of Alabama shows the fine line these complimentary courts draw and how pursuing a remedy in the wrong court may lead to you having to pursue it twice. Do you know whether you are supposed to file in probate or family court?
- Keone Kaukawele Fuqua, the father, filed a petition in the Mobile Probate Court asking that the Court allow him to change the legal name of hs daughter, specifically the last name from “Russell” to “Russell-Fuqua.” The mother opposed this petition and appealed the probate court granting an order as such, all the way to the Alabama Supreme Court.
- The mother and father were married at the time of the child’s birth in April of 2010 (thats right they are considering a name change at the age of 5), it is undisputed that the father is the biological father in fact he is obliged to pay child support, which he had done.
- The divorce court in 2011 ordered the name change to occur and so did the probate court years later.
- The court noted that its jurisdiction (i.e. authority) to change a name came through “legitimacy proceedings” whereby an illegitimate child can be deemed legitimate (this is an antiquated practice) and that absent such a proceeding it lacked the authority to order a name change, similarly apparently the divorce court also lacked the jurisdiction on similar procedural grounds.
- Because the probate court lacked jurisdiction, the supreme court said that their judgment ordering a name change was void.