Stay of Custody Modification Proceeding Pending Parallel Criminal Proceeding

Ex parte Michael Allen Butts, [Ms. 2201027, 2201028, 2201029, 2201030, 2201031, 2201032, 2201033, 2201034, 2201035, and 2201036, Dec. 10, 2021] __ So. 3d __ (Ala. Civ. App. 2021). The court (Edwards, J.; Thompson, P.J., and Moore and Hanson, JJ., concur; Fridy, J., recuses) denies a petition for writ of mandamus filed by the father seeking to require the Jefferson Circuit Court to lift a stay of custody modification issues pending resolution of a DUI charge against the mother in Tennessee. The court granted the petition and ordered the stay lifted as to the father’s allegation that the mother is in contempt of the divorce judgment.

The court first concludes that the father’s mandamus petition, though filed 154 days after entry of the stay, was timely. The court notes that “after the mother’s Tennessee criminal case failed to be resolved in July 2021, the father sought to have the stay lifted because of the prejudice that he contended would result from the additional delay of the trial of his contempt actions.” Ms. *9. The court notes that “[o]ur supreme court has clearly indicated that a trial court may entertain a motion seeking to lift a stay based on changes in the circumstances that impact the propriety of the stay,” and holds the petition was timely because the father filed it within 42 days of the order denying his motion to lift the stay. Ms. **9-10.

As to whether the Tennessee criminal case was a parallel proceeding, the court holds

[B]ecause the father’s contempt actions also involve claims seeking the modification of custody, … we cannot agree with the father that the criminal case and the contempt actions, insofar as they include claims seeking the modification of custody, are not parallel. The character and conduct of a parent is a consideration for a trial court that is contemplating a decision regarding child custody, and the father could, in fact, seek to impugn the mother’s character based on the circumstances surrounding her arrest on the criminal charge…. The mother’s right against self-incrimination could be threatened if she was questioned about her conduct and the circumstances surrounding her arrest on the criminal charge in an attempt to establish her character and the reasons she might be unsuited to have custody of the child.

Ms. **17-18.

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