There is no question that divorced parents equally share in the distribution of any proceeds realized in a wrongful-death action arising out of the death of their minor child. Ala. Code § 6-5-391(c)(“Any damages recovered in an action under this section shall be distributed according to the laws of intestate succession.”). Thus, as to the distribution of the ultimate proceeds, which of the divorced parents commences the wrongful-death action is immaterial. At the same time, the divorced parent who commences the wrongful-death action chooses the attorney who handles the matter and acts as the quasi-fiduciary in the prosecution of the lawsuit. Unfortunately, presently, in some scenarios, there may be uncertainty as to whether both divorced parents have equal standing to commence the wrongful-death action.

By statute, there can be but one action for the wrongful death of a minor child. Ala. Code § 6-5-391(b)(“An action … for wrongful death of the minor shall be a bar to another action either under this section or under Section 6-5-410.”). A viable, first-filed wrongful-death action acts as a legal bar to any second-filed wrongful-death action. If both divorced parents have standing to commence a wrongful-death action, then, one divorced parent can retain legal representation and can “race to the courthouse” to be first to file a wrongful-death complaint. Therefore, when representing a divorced parent whose child has been killed due to the wrongful conduct of another, it must be first determined whether the client parent has standing to commence a wrongful-death action, because, if not, any representation is limited to ensuring that the client parent receives the correct distribution and will not include any attorney fees associated with the prosecution of the wrongful-death action.

Presently lacking is a firm determination as to when both divorced parents have equal authority to commence the wrongful-death action. The applicable statute reads: “When the death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation, or the servants or agents of either, the father[ ] or the mother as specified in Section 6-5-390 … may commence an action.” Ala. Code § 6-5-391(a). While § 6-5-390 is clear that parents “lawfully living together as husband and wife … have an equal right to commence” the wrongful-death action, the section’s language regarding divorced parents is far less certain, particularly if the divorce occurred after January 1, 1997. Section 6-5-390 states: “[H]owever, that in the event such mother and father are not lawfully living together as husband and wife, … the party having legal custody of such minor child shall have exclusive right to commence such action.” This statutory provision contains no definition of “legal custody.”

For divorces finalized prior to January 1, 1997, it was “settled” law that the custodial parent had an exclusive right to commence a wrongful-death action arising out of the death of divorced parents’ minor child. Carter v. Beaver, 577 So. 2d 448 (Ala. 1991); Miller v. Dismukes, 624 So. 2d 1038 (Ala. 1993); Gladhill v. Lamar County Commission, 698 So. 2d 113 (Ala. 1997). There was a bright-line rule that the parent with primary physical custody of the minor child had “legal custody” and, thus, had an exclusive right to commence the wrongful-death action. The non-custodial parent, typically, the father, had no standing to commence the wrongful-death action.

The enactment of Alabama’s Joint Custody Act, Ala. Code §§ 30-3-150 through -157, most likely, negated this bright-line rule. Pursuant to this Act, “[j]oint custody does not necessarily mean equal physical custody.” Ala. Code § 30-3-150. Divorced parents are “encourage[ed] … to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage.” Id. In a divorce decree, the parents may be granted “joint custody” of their minor child or children, with “joint custody” defined as “[j]oint legal custody and joint physical custody.” Ala. Code § 30-3-151(1). Alternatively, one parent may be granted sole legal custody and/or physical custody. Most definitely, the Act differentiates legal custody from physical custody, with the former defined as follows: “Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.” Ala. Code §30-3-151(2). In defining, “joint physical custody,” the legislature declared that “[j]oint physical custody does not necessarily mean physical custody of equal durations of time,” that is, one parent may have physical custody for the majority of time. Ala. Code § 30-3-151(3).

How now to determine “legal custody” for purposes of §§ 6-5-390 and -391 when deciding if one divorced parent has an exclusive right to bring a wrongful-death action has yet to be affirmatively decided by the Alabama Supreme Court and the Alabama Legislature has not resolve the issue through further legislation. Quite arguably, having primary physical custody of the deceased child is now immaterial. The salient question involves whether the divorced parents had joint custody or one parent had sole legal custody or whether, in the judgment of divorce, the court designated one parent has having the sole power or authority to bring a wrongful-death action. As to the latter question, while asking a court to make such a designation at the time of the divorce might be an unlikely event, such a designation is possible and the divorce documents should be examined for such a designation. Quite arguably, if the divorced parents were granted joint custody with no designation of a single parent with the power to bring a wrongful-death action, then, neither divorced parent has the exclusive right to commence a wrongful-death action and, instead, both divorced parents have standing to commence a wrongful-death action and, effectively, to “race each other to the courthouse.”

In Nix v. McElrath, 952 So. 2d 1107 (Ala. 2006), the Alabama Supreme Court was able to avoid answering the question of whether, after the enactment of the Joint Custody Act, a parent with primary physical custody had the exclusive authority or standing to commence a wrongful-death action. The parents of Magen were divorced in 2001 with the parents granted joint custody of Magen. The mother, who had primary custody, filed a wrongful-death action; later, the father sought to intervene as an indispensable party. The Supreme Court observed that “[b]oth the father and the mother persuasively argued at the trial level as to which of them, as divorced parents given ‘joint custody,’ have the right to maintain a wrongful-death action … and, secondarily, whether that right is exclusive.” 952 So. 2d at 1110. After noting the father’s concession that issue of the mother’s exclusive right to bring the wrongful-death action was now moot because the mother was the first to file a complaint and because the action was resolved, leaving open only the issue of distributing the recovery, the Supreme Court wrote:

The parties’ divorce was granted April 19, 2001, well after the legislature enacted Alabama’s Joint Custody Act, § 30-3-150, et seq., Ala. Code 1975. Although the terms “primary custody” and “secondary custody” are not defined in the act, the definitional section, § 30-3-151(1), defines “joint custody” as “joint legal custody and joint physical custody.” This terminology does not fit squarely with that portion of § 6-5-390 that provides that “the party having legal custody of such minor child shall have the exclusive right to commence such action.” …

952 So. 2d at 1111. In other words, the Nix Court appreciated the “problem” created by the Joint Custody Act in interpreting the phrase “legal custody” in § 6-5-390 but left the “problem” to be resolved in some future appeal.

In Nix, in its order, the trial court wrote: “It is well established under the Alabama law that the custodial parent of a minor is entitled to maintain a wrongful death action after the minor’s death …. There does not appear to be any Alabama case declaring the rights of the parents to maintain a wrongful death action when the parents were vested with joint legal custody of the minor.” 952 So. 2d at 1109. The trial court further wrote: “In view of the apparent lack of Alabama authority, the court is of the opinion that the better policy is to allow the action to be maintained by the parent who first files the action.” Id. This trial court concluded, without the benefit of any guidance from an Alabama appellate court, that, if joint legal custody was granted, both parents had authority or standing to commence the wrongful-death action and the parents could “race each other to the courthouse.”

Pittman Dutton attorneys have been involved in wrongful-death actions initially commenced by a divorced father where the mother has sought to be substituted as the named plaintiff and challenged the father’s authority or standing. To avoid an adverse ruling by the trial court and the cost of an appellate review, often, an agreement is crafted whereby both divorced parents join in the prosecution of the wrongful-death action with both parents’ counsel sharing in any attorney fees. This solution on the part of a divorced father who is the first to file a complaint begs the ultimate question but may be practical from the perceptive of the father’s attorneys. This solution is dependent on the parties and their respective counsel beginning amiable to cooperating with one another.

In Nix, the mother initially commenced the wrongful-death action and the Alabama Supreme Court found that she had standing to commence the wrongful-death action. While not expressly stated in the opinion, the language implicitly implies that, because the father had been granted joint custody, the father would also have standing to commence the wrongful-death action and the mother would not have had the exclusive right to commence the wrongful-death action and that, if the father had initially filed the complaint, the father could prosecute the action without intervention or interference from the mother. Yet, to date, the Alabama Supreme Court has not be compelled to make the implicit explicit. Likewise, the Alabama Legislature has chosen not to amend the applicable statutes so as to clarify when one parent “has the exclusive right to bring suit,” when the parents have been granted joint custody in a divorce proceeding.

Lee Pittman

About 

Lee Pittman is one of the founding partners of Pittman, Dutton & Hellums, P.C. Learn more about his background and featured practice areas here.

    Find more about me on:
  • facebook
  • googleplus
  • linkedin
  • twitter

Leave a Reply

Your email address will not be published. Required fields are marked *