author: THOMAS, Judge.

text:
    James Thomas HENSLEY v. Dennis KANIZAI and Vanessa Kanizai, Intervenors.
    2120459.
    Court of Civil Appeals of Alabama.
    July 26, 2013.
    Rehearing Denied Oct. 11, 2013.

      Christopher G. Childers, Florence, for appellant.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

The following facts appear in the pleadings and motions contained in the record on appeal. James Thomas Hensley (“the father”) and Danna Kanizai (“the mother”) were divorced by the Lauderdale Circuit Court (“the circuit court”) on October 11, 2011. Two children were born of their marriage, A.H. and J.H.; whether the mother’s oldest child, R.H., is the father’s biological child or was adopted by the father is in dispute. The parties’ divorce judgment is not a part of the record on appeal; however, the father’s petition for modification of the divorce judgment alleges that the divorce judgment incorporated the parties’ settlement agreement, which did not reference R.H., A.H., or J.H. (sometimes collectively referred to as “the children”). A judgment of the Lauderdale Juvenile Court (“the juvenile court”) contained in the record confirms that the divorce judgment failed to address the custody of the children.

On July 6, 2012, the father filed a petition seeking a protection-fi-om-abuse (“PFA”) order in the circuit court; that petition is not contained in the record on appeal. However, in that petition, which was assigned case number DR-12-391, the father alleged that the mother had endangered the children; he sought temporary custody of the children. The circuit court awarded ex parte custody of the children to the father on the same day that he filed his petition. After a trial held on July 30, 2012, the circuit court awarded the father temporary custody of the children in a PFA order, which is not contained in the record on appeal. Only A.H. and J.H. were in the father’s physical custody on July 30, 2012; R.H. remained in Tennessee, where all three of the children had been living with Dennis Kanizai (“the maternal grandfather”) and Vanessa Kanizai (hereinafter referred to collectively as “the maternal grandparents”).

At some point before July 19, 2012, the maternal grandfather filed emergency petitions assigned case numbers JU-12-276.01, JU-12-277.01, and JU-12-279.01 in the juvenile court. The record does not contain the petitions, but the record indicates that the maternal grandfather sought custody of the children in those petitions. The record on appeal contains a copy of a judgment dated July 19, 2012, in which the juvenile court dismissed the juvenile-court actions.

On July 30, 2012, the father filed a petition in the circuit court seeking to amend the divorce judgment and seeking an order holding the mother in contempt for alleged violations of the PFA order. That action was assigned case number DR-11-532.01. In his petition, the father alleged that the mother abused drugs and had failed to supervise the children. He requested legal and physical custody of the children and further requested, among other things, an order requiring the mother to pay child support. The mother answered the father’s petition, denying the father’s allegations; she filed no other pleadings or motions.

The maternal grandparents filed a verified motion to intervene in case number DR-11-532.01 on August 6, 2012. In their verified motion to intervene, they sought an award of custody and alleged that the children were dependent. They further stated that the father had physically and mentally abused the children and that the mother “had a history of drug and alcohol abuse, and recently ha[d] engaged in neglectful, volatile[,] and dangerous behavior that pose[d] a serious risk of harm to [the children].” According to other statements in the maternal grandparents’ verified motion to intervene, the children had begun living with the maternal grandparents in Tennessee in October 2010. The maternal grandparents requested an award of “immediate temporary custody” of the children and the appointment of a guardian ad litem for the children. On August 11, 2012, the circuit court granted the maternal grandparents’ motion to intervene and appointed a guardian ad litem for the children. The circuit court also set a hearing for August 27, 2012.

On August 15, 2012, the maternal grandparents filed a motion seeking a determination whether Alabama had jurisdiction over the father’s action under the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), codified at Ala. Code 1975, § 30-BB-101 et seq. The maternal grandparents alleged that the children had resided in Tennessee from October 2010 until July 2012, when two of the children relocated to Alabama pursuant to the circuit court’s PFA order. Thus, the maternal grandparents argued, the home state of the children at the time of the commencement of the father’s action was Tennessee. See Ala.Code 1975, §§ 30-3B-102(7) (defining “home state” as “[t]he state in which a child lived with a parent or a person acting as a parent at least six consecutive months immediately before the commencement of a child custody proceeding”), and 30-3B-201(a)(l) (providing that an Alabama court has jurisdiction to make a child-custody determination if it is the home state of the child at the time of the commencement of a child-custody proceeding). The maternal grandparents further alleged that they had filed a petition seeking emergency temporary custody of the children in Hardin County, Tennessee. Relying on § 30-3B-206(b) — which provides that when a simultaneous child-custody proceeding is pending in another state having jurisdiction pursuant to its version of the UCCJEA, a court entertaining a child-custody proceeding must stay the proceeding and communicate with the court of that other state — the maternal grandparents requested that the circuit court confer with the Tennessee court regarding its jurisdiction.

The father filed a brief in response to the maternal grandparents’ motion to determine jurisdiction; in his brief, the father requested that the circuit court retain jurisdiction of the action. He conceded that the Tennessee court had awarded emergency custody of R.H. to the maternal grandparents, but he reported that the Tennessee court had “elected to stay further proceedings [regarding A.H. and J.H.] until [the] Hardin County Court[] confer[red] with the Lauderdale County Court in Alabama.” The father argued that the circuit court had acquired temporary emergency jurisdiction over A.H. and J.H. under Ala.Code 1975, § 30-3B-204, based on its entry of the PFA order and its continuing jurisdiction under the Parental Kidnapping Prevention Act (“the PKPA”). According to the father, Alabama was the home state of A.H. and J.H., because, he alleged, A.H. and J.H. had lived exclusively in Alabama since June 23, 2012, and had lived an equal amount of time in Alabama and Tennessee before June 23, 2012. He asserted that before June 23, 2012, A.H. and J.H. had “spent half the week with the father and the other half with the maternal grandparents.” Specifically, he contended that A.H. and J.H. had spent Monday to Friday evening with the maternal grandparents in Tennessee and Friday evening to Monday morning with him in Alabama. Finally, the father asserted that the maternal grandparents had acquiesced to the circuit court’s jurisdiction by appearing and intervening in the circuit-court action to seek custody of the children and by being present at the PFA hearing.

The maternal grandparents filed a responsive brief explaining the legal basis underlying their request that the circuit court transfer jurisdiction of the action to Tennessee. In that brief, the maternal grandparents alleged that, at the time the divorce judgment was entered, the children resided with them in Tennessee. Thus, according to the maternal grandparents, the children had resided “predominantly” in Tennessee for “approximately two years” and, they further argued, visits with the father in Alabama did not alter that conclusion. See § 30-3B-102(7) (stating that “[a] period of temporary absence of the child ... is part of the [six-month] period” used to determine the home state of a child). Based on that argument, they contended in the circuit court that Tennessee is the home state of the children. Although they conceded that the circuit court had exercised temporary emergency jurisdiction over the children’s custody in the PFA action under § 30-3B-204(b), they argued that only the Tennessee court could exercise jurisdiction under the UC-CJEA to enter a final child-custody determination. The maternal grandparents later filed a motion to dismiss the father’s action, to which they attached some documents that, they claimed, established that the children had attended school in Tennessee for the past two years; however, those documents did not include any information establishing the name of the school the children attended or the location at which the children attended school.

On January 24, 2013, the circuit court entered an order granting the maternal grandparents’ motion and dismissing the action without including any findings of fact or legal conclusions to support its determination that it lacked subject-matter jurisdiction under the UCCJEA. The circuit court stated in its order that it had considered only arguments of counsel and the motions and briefs the parties had filed in ruling on the maternal grandparents’ motion. The father filed a motion to alter, amend, or vacate the judgment and requested a hearing, again arguing that the circuit court had acquired jurisdiction under the UCCJEA. The circuit court denied the father’s postjudgment motion on February 28, 2013. The father timely appealed. On appeal, the father raises three issues. He first challenges the circuit court’s dismissal of his petition to amend the divorce judgment based on the conclusion that it lacked subject-matter jurisdiction under the UCCJEA. Secondly, the father argues that the circuit court erred by failing to communicate with the Tennessee court under §§ 30-3B-204(d), 30-3B-206(b), and 30-3B-110. Finally, the father argues that the circuit court erred by failing to set a date for the duration of a temporary-custody order as required by § 30-3B-204(c) and by failing to specify the grounds upon which it based its decision to dismiss his action.

The UCCJEA provides the framework for the determination of which state may enter a child-custody determination regarding a child. Section 30-3B-201 provides:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) 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;
“(2) 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, and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(8) All courts having jurisdiction under subdivision (1) or (2) 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; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
“(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
“(c) Physical presence of a child is not necessary or sufficient to make a child custody determination.”

The UCCJEA defines “home state” in § 30-3B-102(7), which reads in its entirety:

“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. 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. A period of temporary absence of the child or any of the mentioned persons is part of the period.”

Section 30-3B-204 governs temporary emergency jurisdiction. That section reads:

“(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
“(b) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.
“(c) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court • of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 30-3B-201 through 30-3B-203. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
“(d) A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to Sections 30-3B-201 through 30-3B-203, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.”

The record contains only pleadings, motions, briefs, and a few documentary exhibits (a judgment of the juvenile court and documents purporting to be school-attendance records). The circuit court did not hold an evidentiary hearing; instead, the circuit court heard only arguments of counsel and considered the various motions and briefs filed by the father and the maternal grandparents, most of which are not evidence. Fountain Fin., Inc. v. Hines, 788 So.2d 155,159 (Ala.2000) (quoting other cases for the propositions that “ ‘[mjotions and arguments of counsel are not evidence’ ” and that “ ‘[sjtatements in motions are not evidence and are therefore not entitled to evidentiary weight.’ ”). However, the maternal grandparents’ motion to intervene was verified; a “[vjerified pleading[ ] constitute[s][an] affidavit ] and [is] treated as evidence.” Mead v. State, 449 So.2d 1279, 1280 (Ala.Crim.App.1984).

In his initial argument on appeal, the father argues, without citation to authority, that the circuit court has subject-matter jurisdiction under the UCCJEA because the children were born in Alabama and the parents continue to reside in Alabama and because, although it divorced the parties without addressing the custody of their children, the circuit court could have adjudicated child custody at the time of the divorce. This contention is wholly without merit. The circuit court has jurisdiction over an initial child-custody proceeding only if one of the bases for jurisdiction under § 30-3B-201(a) is satisfied, see § 30-3B-201(b), or if the requirements for temporary emergency jurisdiction under § 30-3B-204 are met. None of the facts the father relies on provides a basis for determining jurisdiction under the UC-CJEA in the present case. Instead, the evidence before the circuit court indicated that the children’s home state at the time of the commencement of the father’s action was Tennessee, because they had lived there with the maternal grandparents for at least six months before the father commenced his action seeking to amend the divorce judgment to address the custody of the children.

The father next contends that the circuit court had temporary emergency jurisdiction over his petition to amend the divorce judgment under § 30-3B-204. However, the father has consistently asserted that the PFA order was entered under the temporary emergency jurisdiction provided in § 30-3B-204. We agree that the circuit court had jurisdiction over the child-custody determination in the PFA action under § 30-3B-204(a), because the children were present in this state and the allegations of the PFA petition raised an emergency need to protect the children from being exposed to a dangerous animal.

However, we find no support for the father’s argument that the circuit court was operating under § 30-3B-204 at the time it considered the father’s petition to amend the divorce judgment to address custody of the children. Temporary emergency jurisdiction is, by its nature, temporary, is designed to address custody in situations in which a child has been abandoned or is in need of emergency protection, and is limited in duration as provided in § 30-3B-204(b) and (c). Section 30-3B-204(b) provides that, when no other custody proceeding is pending (and when no previous determination has been made), an order entered under the court’s temporary emergency jurisdiction remains in effect until an order is obtained from a court having jurisdiction under the UCCJEA. Because no proceeding was pending in Tennessee at the time the PFA order was entered, the PFA order would remain in effect until a court that had nonemergency jurisdiction over a child-custody determination regarding the children entered an order (or until the PFA order expired). § 30-3B-204(b). The emergency that the father sought to address in the PFA action had been resolved by the order granting him temporary custody, and, thus, no emergency existed at the time of the commencement of the father’s action to amend the divorce judgment upon which to base temporary emergency jurisdiction under § 30-3B-204(a).

The father further asserts that the PFA order is the initial custody determination regarding the children. The father is arguing that, once the circuit court exercised jurisdiction to make a child-custody determination in the PFA action, it would then maintain continuing jurisdiction over the children’s custody under the PKPA, § 1738A(d), because the father, a “contestant” under the PKPA, still resides in this state. We explained the interplay between the PKPA and the UCCJEA in Patrick v. Williams, 952 So.2d 1131, 1138 (Ala.Civ.App.2006):

“ ‘The Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C. § 1738A, and Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Ala.Code 1975, § 30-3B-101 et seq., govern when a state has jurisdiction to decide a child-custody issue. The PKPA states that continuing jurisdiction remains in a state that has made a child-custody determination provided that the state continues to have jurisdiction under the state’s laws and the child or at least one “contestant” resides in that state. 28 U.S.C. § 1738A(d); see also Holloway v. Holloway, 519 So.2d 531, 532 (Ala.Civ.App.1987).’ ”
“M.J.P. v. K.H., 923 So.2d 1114, 1116 (Ala.Civ.App.2005). The Parental Kidnapping Prevention Act (‘PKPA’) defines a ‘contestant’ as ‘a person, including a parent or grandparent, who claims a right to custody or visitation of a child.’ 28 U.S.C. § 1738A(b)(2).
“Under the PKPA, the trial court retained continuing jurisdiction to modify the children’s custody so long as it retained jurisdiction under the laws of Alabama and at least one of the contestants continued to live in Alabama. 28 U.S.C. § 1738A(d). The maternal grandmother has lived in Tallapoosa County at all times relevant to this appeal, and she meets the criteria outlined in the PKPA to be a ‘contestant’ because she is a person claiming a right to custody of the children. See 28 U.S.C. § 1738A(b)(2). Therefore, our analysis next turns to whether the trial court could, under Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (‘the UCCJEA’), exercise continuing jurisdiction to modify the children’s custody. 28 U.S.C. § 1738A(d).
“In order to exercise continuing jurisdiction over the matter, the trial court must have had jurisdiction to make an initial custody determination.”

What the father misunderstands is that the circuit court’s proper exercise of temporary emergency jurisdiction does not equate to its having acquired jurisdiction to make an initial child-custody determination under § 30-3B-201(a). Continuing jurisdiction under the PKPA does not exist if the state does not have jurisdiction under its version of the UCCJEA. The circuit court was exercising temporary emergency jurisdiction under § 30-3B-204(b) when it made the child-custody determination in the PFA action. A child-custody determination entered during the exercise of temporary emergency jurisdiction typically continues in effect only until a court that may properly exercise nonemergency jurisdiction over a child-custody determination regarding the children enters an order. See § 30-3B-204(b) & (c). Only in rare instances, such as when a child-custody proceeding is not commenced in a state having jurisdiction under §§ 30-3B-201, 30-3B-202, or 30-3B-203, does a child-custody determination entered under § 30-3B-204 have the possibility of becoming a final child-custody determination, and, even then, only if the state becomes the home state of the child and if the order provides that it may become a final child-custody determination. § 30-3B-204(b).

In the present case, the maternal grandparents have initiated an action in the state having jurisdiction under § 30-3B-201(a)(1), i.e., Tennessee, and the PFA order entered by the circuit court will expire upon entry of a child-custody determination by the Tennessee court. The exercise of temporary emergency jurisdiction “is extremely limited, allowing the court to make only such temporary orders as are necessary ‘to protect the child until the state that has jurisdiction under [Ala.Code 1975, §§ 30-3B-201 through 30-3B-203] enters an order.’” M.B.L. v. G.G.L., 1 So.3d 1048, 1051 (Ala.Civ.App.2008) (quoting § 30-3B-204, Official Comment). Therefore, the circuit court’s PFA order entered pursuant to its exercise of temporary emergency jurisdiction under § 30-3B-204(b) is not an initial child-custody determination and cannot serve as a means by which the circuit court could acquire jurisdiction it does not otherwise have under the UCCJEA.

The father further argues that the circuit court is a more convenient forum under § 30-3B-207. Section 30-3B-207 permits a court having jurisdiction under the UCCJEA to decline to exercise that jurisdiction “if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” § 30-3B-207(a). However, the statute does not permit a state not having jurisdiction under the UCCJEA to determine that it would be a more convenient forum than a state having jurisdiction under the UCCJEA. That is, the circuit court could not have secured jurisdiction over the father’s action by determining that it would be a more convenient forum than Tennessee.

In the father’s second issue on appeal, he argues that the circuit court erred by failing to communicate with the Tennessee court under § 30-3B-204(d), § 30-3B-206(b), and § 30-3B-110. Section 30-3B-204(d) requires communication between courts. However, as we have explained, by the time the father commenced his action seeking to amend the divorce judgment the emergency was over, the issue having been resolved by the entry of the PFA order under § 30-3B-204(b). The circuit court could not have acquired temporary emergency jurisdiction over the father’s petition to amend the divorce judgment under § 30-3B-204, so the circuit court had no duty to communicate with the Tennessee court under § 30-3B-204(d).

The father’s argument based on § 30-3B-206(b) and § 30-3B-110, although stronger, is also unavailing. Section § 30-3B-206(b) states:

“(b) Except as otherwise provided in Section 30-3B-204, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to Section 30-3B-209. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.”

The father argues that, once it learned of the Tennessee action, the circuit court was required to communicate with the Tennessee court under § 30-3B-206(b). The father also contends that the circuit court was required, under § 30-3B-110(d), to make a record of that communication and to make that record available to him. Further, he complains that the circuit court erred in failing to allow him to present facts in the form of testimony, as permitted by'§ 30-3B-110(b), which states that “[t]he court may allow the parties to participate in the communication [between courts]. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.”

Certainly, the circuit court is required to base its jurisdictional determination on evidence presented by the parties. The Official Comment to § 30-3B-110, however, provides that the presentation of facts and legal argument “may be done through a hearing or, if appropriate, by affidavit or memorandum.” As noted above, the parties extensively briefed the legal issue, and the maternal grandparents presented a verified motion containing facts pertaining to jurisdiction. The father presented no verified pleading or motion, no affidavit, and no other evidence, and he never specifically requested an evidentiary hearing before the circuit court entered its order dismissing his action.

Furthermore, although § 30-3B-206(b) requires a court of this state to stay its proceeding and communicate with the court of the state in which a child-custody proceeding concerning the same child or children is pending, we need not reverse a trial court’s judgment for failing to communicate if any error that might have occurred is harmless error under Rule 45, Ala. R.App. P. See Ramsey v. Ramsey, 995 So.2d 881, 888 (Ala.Civ.App.2008). The circuit court determined that it lacked jurisdiction over the father’s action based on the evidence and legal arguments presented to it. That evidence, which was contained in the verified motion to intervene, proved that the children had lived with the maternal grandparents since October 2010. According to the allegations in the motion, the father did not provide financial support to the children and rarely visited with the children while they were living with the maternal grandparents. The father did not dispute that the children had been living at least part-time with the maternal grandparents since the entry of the parents’ divorce judgment in October 2011, although he did allege that the children were in his custody on the weekends. However, the father provided no contradictory evidence via affidavit or testimony.

The circuit court had before it uncontra-dicted evidence from which it could have concluded that the children had been in the physical custody of the maternal grandparents for at least six months before the commencement of the father’s action and that Tennessee was the children’s home state. Any communication with the Tennessee court would not likely have impacted the circuit court’s conclusion that it lacked subject-matter jurisdiction because the children had been living with the maternal grandparents in Tennessee for over six months at the time the father commenced his action seeking to amend the divorce judgment. Ramsey, 995 So.2d at 888. Therefore, because the circuit court had before it evidence indicating that the children had been living in Tennessee for more than six months preceding the commencement of the father’s action, we cannot conclude that the circuit court erred by failing to communicate with the Tennessee court and by failing to hold an evidentiary hearing, which the father did not specifically request before the circuit court entered its order dismissing the action.

The father’s final arguments are that the circuit court erred by failing to set the duration of a temporary-custody order under § 30-3B-204(c) and by not addressing jurisdiction or specifying the grounds upon which it based its dismissal. Because the circuit court’s order in this action determined that it lacked subject-matter jurisdiction to make a child-custody determination, § 30-3B-204(c), which governs orders issued by a court exercising temporary emergency jurisdiction, is not applicable. To the extent the father argues that the circuit court was required to state its factual determinations and legal conclusions in its order, we reject his argument. No provision in the UCCJEA required the circuit court to make written findings or conclusions in an order entered under its provisions.

In conclusion, we reject the father’s arguments that the circuit court had temporary emergency jurisdiction over his action seeking to amend the divorce judgment and ■ that the circuit court’s PFA order, entered pursuant to its temporary emergency jurisdiction under § 30-3B-204(b), was an initial child-custody determination upon which to base continuing jurisdiction in the circuit court. Further, we conclude that the circuit court did not commit reversible error by failing to communicate with the Tennessee court. Finally we reject the father’s contentions that the circuit court erred by failing to set the duration of a temporary-custody order and by failing to make written findings or conclusions in its order dismissing the father’s action. Accordingly, we affirm the judgment of the circuit court dismissing the father’s action seeking to amend his divorce judgment to address the custody of the children.

AFFIRMED.

THOMPSON, P.J., and PITTMAN and DONALDSON, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . We note that the circuit court has no jurisdiction to consider a dependency petition. See Ala.Code 1975, § 12-15-114(a) (providing that the juvenile court has exclusive original jurisdiction over proceedings in which a child is alleged to be dependent). However, the maternal grandparents could properly intervene in the divorce action to seek custody based on allegations that the parents were unfit to have custody of the children. See Ex parte Terry, 494 So.2d 628 (Ala.1986). The factual allegations in the maternal grandparents’ verified motion to intervene are sufficient allegations of unfitness that, if proven, would overcome the parents' prima facie right to custody of the children.

      . We note that the maternal grandparents stated in the verified motion to intervene that the children began living with them in Tennessee in October 2010; however, in their motion for a determination of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), codified at Ala.Code 1975, § 30-3B-101 et seq., which was not verified, the maternal grandparents stated that the children began living with them in October 2011. In their verified motion to intervene and in their trial brief, the maternal grandparents indicated that the children had been living with them for 21 months and for almost 2 years, respectively, suggesting that the October 2010 date is the correct date. The difference in the dates is of no real consequence, however, because, as discussed infra, the UCCJEA bases the determination of a child’s home state on where the child has lived for the six months immediately preceding the commencement of an action seeking a child-custody determination. See Ala.Code 1975, § 30-3B-201(7).

      . The record does not reflect that the Tennessee court communicated with the circuit court. Section 30-3B-110 governs communication between courts considering jurisdictional issues or simultaneous proceedings under the UCCJEA. Although § 30-3B-110(b) states that communication between courts regarding schedules, calendars, or court records need not be recorded or disclosed to the parties, § 30-3B-110(c) requires that all other communication between courts be recorded.

      . The PFA order was a child-custody determination. Ala.Code 1975, § 30-3B-102(3). Section 30-3B-102(4) expressly includes within the definition of "child custody proceeding” a "proceeding for ... protection from domestic violence, in which the issue [of child custody] may appear.” Thus, the PFA action, in which the issue of child custody was litigated, was a child-custody proceeding as defined by the UCCJEA, and the resulting PFA order was a child-custody determination, which is defined as an order "providing for the legal custody, physical custody, or visitation with respect to a child.” Ala.Code 1975 § 30-3B-102(3).

      . See 28 U.S.C. § 1738A(d) (jurisdiction of a court of a state that has made a child-custody determination continues as long as that court has jurisdiction under the laws of the state and the state remains the residence of the child or of any contestant).

      . The father's acquiescence argument is unavailing. "jurisdiction to make a child custody determination [under the UCCJEA] is subject matter jurisdiction,” and "an agreement of the parties to confer jurisdiction on a court that would not otherwise have jurisdiction under [the UCCJEA] is ineffective.” Ala.Code 1975, § 30-3B-201, Official Comment.

      . The father raises no arguments pertaining to the circuit court's dismissal of his petition insofar as it alleged that the mother was in contempt of the PFA order. When a party fails to argue an issue in his or her appellate brief, that issue is deemed waived. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) ("When an appellant fails to argue an issue in its brief, that issue is waived.”). Because the father raises no argument pertinent to the mother, we have removed her as a named appellee.

      . The father has not challenged the maternal grandparents’ status as “person[s] acting as a parent” under § 30-3B-102(13). Under the UCCJEA a "person acting as a parent" is:
      "A person, other than a parent, who:
      "a. Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and “b. Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.”
      § 30-3B-102(13). "Physical custody” is defined as "[t]he physical care and supervision of a child.” § 30-3B-102(14). This court has determined that a grandparent who had physical custody of a child and who was seeking legal custody of that child qualified as a person acting as a parent under § 30-3B-102(13). Patrick v. Williams, 952 So.2d 1131, 1139 (Ala.Civ.App.2006). The maternal grandparents, like the grandparent in Patrick, had physical custody of the children for at least six months of the year preceding the filing of the father’s petition to amend the divorce judgment and have been actively seeking legal custody of the children. Therefore, each of the maternal grandparents is a person acting as a parent under § 30-3B-102(13). Patrick, 952 So.2d at 1139.

      . The verified motion to intervene stated that the allegations in the PFA petition included an allegation that “the mother allowed the children to be around a dangerous animal, and one of the children was injured.”

      ). The first time that the father requested an evidentiary hearing on the subject-matter-jurisdiction issue was in his postjudgment motion.


source: Caselaw Access Project

author: THOMAS, Judge. MOORE, Judge,

license: Public Domain

text:
    B.C. v.A.A. and M.A. R.H.M. and H.R.M. v. A.A. and M.A.
    2111247 and 2120407.
    Court of Civil Appeals of Alabama.
    Aug. 2, 2013.
    Rehearing Denied in case no. 2120407 Oct. 11, 2013.

      Angela Cochran Morgan, Fort Payne, for appellant B.C.
    Tamara W. Neely, Fort Payne, for appellants R.H.M. and H.R.M.
    Submitted on appellants’ brief only.
   THOMAS, Judge.

In 2006, B.C. (“the mother”) consented to a judgment of the Jackson Juvenile Court placing A.B. and A.M. (“the children”) in the custody of M.A. and A.A., the children’s maternal great-aunt and her husband (referred to collectively as “the custodians”). R.H.M. and H.R.M., the maternal great-uncle and his wife (referred to collectively as “the noncustodial relatives”), were awarded visitation with the children every Thursday from 8:00 a.m. to 8:00 p.m. and alternating weekends from Friday at 5:00 p.m. to Sunday at 8:00 a.m. The record does not indicate the specific visitation rights afforded the mother; however, M.A. testified that “it’s in the papers that she can come and visit.”

In April 2011, the custodians sought to adopt the children. To that end, they filed petitions seeking the termination of the parental rights of the mother to the children in the DeKalb Juvenile Court. Those petitions also sought the termination of the visitation rights awarded to the noncustodial relatives. The mother answered the petitions and filed separate petitions seeking custody of the children. The noncustodial relatives filed a petition to intervene and a complaint in intervention in each action, seeking custody of the children or, at least, a continuation of their visitation rights. The juvenile court permitted the noncustodial relatives to intervene; it also consolidated the actions for trial.

After several continuances, the actions were tried on August 14, 2012. M.A. testified that the mother had not consistently visited the children after late 2008, when the mother had resumed her relationship with the father of one of the children, who, the custodians believed, had abused the older child. M.A. characterized the change in the relationship between the mother and the custodians as being like “we became the enemy” and said that it had become more of a battle between the mother and M.A. instead of a cooperative relationship to benefit the children. M.A. further testified that the mother had not paid child support or provided financial support for the children until the custodians sought a child-support order; M.A. testified that the mother had not been current on her child-support payments at the time the termination petitions were filed, but she admitted that the mother might have been current on her payments at the time of trial.

M.A. testified that she and A.A. were seeking to adopt the children to provide them stability. She said that the children would be entering the second and fourth grades and that the younger child made “straight A’s” and that the older child made “A’s” and one “B” the previous school year. Although the children were performing well academically, she said that it was difficult for the children to “go back and forth” in a situation where they were being told “negative, negative, negative.” According to M.A., the noncustodial relatives would make disparaging comments about the custodians to the children. She admitted, however, that she might have made disparaging comments about the noncustodial relatives and about the mother and that, at times, she had questioned the children about what was said and done when they visited the noncustodial relatives. M.A. admitted that that behavior had been inappropriate and stated that she had discontinued the practice. She described the children’s lives as being a “roller coaster ride.” M.A. denied that she wanted to “completely wipe the mother from the children’s lives”; however, the petitions for termination of parental rights stated that the custodians “realize that ... the mother will be giving up any and all benefits of a relationship with the minor child[ren] and [she] will never be entitled to any visitation with the minor child[ren], nor participate any further in [their] li[ves].”

Regarding the request that the noncustodial relatives’ visitation rights be terminated, M.A. explained that the visitation rights granted under the 2006 judgment had begun presenting difficulties for the custodians and the children. M.A. said that the Thursday visitations, which were exercised from after school until 8:00 p.m. on Thursdays during the school year, prevented the children from being involved in extracurricular activities because they could not attend Thursday practices. She also noted that alternate-weekend visits would interfere with activities that might require the children to participate on the weekends. According to M.A., the communication between the custodians and the noncustodial relatives was nonexistent. She explained that it would not be possible to “set up anything” regarding transportation to practices or attendance at activities because of the lack of meaningful communication between the parties. M.A. also testified that the children acted differently when they returned from visitation; she commented that the older child was more aggressive toward the younger child and complained that she had been treated differently by the noncustodial relatives, while the younger child cried “a lot” more. M.A. further testified that she had heard that the noncustodial relatives had told the children that the custodians were not Christians and that they were “demon possessed”; she also said that the noncustodial relatives had tried to prevent the custodians from receiving a “ministry license.” However, although she testified that she was concerned about the children’s emotional health because they were required to “go back and forth,” M.A. said that she had no real concerns regarding the children’s safety when they were visiting with the noncustodial relatives.

A.A. testified that he works in Chattanooga, Tennessee. Like M.A., he testified that he had no intention of cutting the mother out of the children’s lives completely; he said that she could still visit even after her parental rights were terminated. He also said that he had no desire to end all visits with the noncustodial relatives either; he stated that he would like to be able to use “common sense” when determining when the noncustodial relatives could visit. He said that the mother and the noncustodial relatives were family and that “you can’t take someone out of someone else’s life completely and entirely without there being devastation. That would be horrible.” Like M.A., he did note, however, that the children’s behavior changed after visitation with the noncustodial relatives; he said that teachers had reported that the children’s behavior changed on Fridays. A.A. also testified that the older child had reported being called a “GD little B” at a visit. He admitted that the parties needed to improve their relationship and their communication. He explained that it would take effort from all parties to effectively do so.

R.H.M. testified that he and H.R.M. were awarded visitation in the 2006 judgment. He said that, although the communication between the parties was nonexistent at first, it had improved for a few years. However, he explained, when a dispute arose over the custodians refusing to allow the children to visit at Christmas, despite the fact that Christmas fell on a visitation weekend, he told the custodians that he did not like how he and H.R.M. were being treated. He said that M.A. became upset after that discussion and that the communication between the parties disintegrated. R.H.M. admitted that he had, at times, made disparaging statements about the custodians in the presence of the children and that he had also sometimes inquired of the children what was being said and done at the custodians’ home; however, he testified that he and H.R.M. had realized such conduct was inappropriate and that they had discontinued those practices.

R.H.M. testified that he and H.R.M. desired custody of the children because they would promote the involvement of the mother, who, he said, had become more interested in being involved with the children. According to R.H.M., the custodians’ relationship with the mother prevented her from being able to maintain a relationship with the children. He said that M.A. was his sister and that she seemed determined to cut off the children’s “family ties,” starting with their relationships with the mother and with him and H.R.M. He contended that he and H.R.M. could provide the children a stable home and also foster then* relationships with the mother and with the custodians.

Regarding the ability to handle transporting the children to and from practices or activities, R.H.M. said that he and H.R.M. would have no problem making sure the children were transported to wherever they needed to be; he noted that he and H.R.M. lived only 20 to 25 minutes away from the custodians. He said that he would be willing to exchange schedules and to communicate, although perhaps in a limited manner, with the custodians regarding the children. He denied having tried to interfere with the custodians’ “ministry license,” and he denied having called the older child a “GD little B.” When questioned regarding another incident in which the younger child had reported that he had stated that he wanted to kill the custodians, he explained that he had been upset over the pending action, that he had made some statement that may have contained profanity indicating that he was fed up with the matter, that he had left his house and gone into his yard, that he had discovered that his dog had chewed through some wires on his lawnmower, and that he had then returned to the house and told H.R.M. that “he would like to kill that dog.” He said that it was likely that the younger child had overheard some of the statements and that he had been confused regarding the threat to kill. R.H.M. denied having anger-management issues but admitted that, at times, he did become angry.

R.H.M. testified that the mother visited with the children when the children were visiting with him and H.R.M. He explained that the mother would come to their home at times and that, at other times, they would travel to Chattanooga to provide the mother visitation with the children. According to R.H.M., the mother visited with the children regularly. He said that the mother loved the children and that they loved her. He described the younger child as “glowing” when he saw the mother. He further opined that the mother’s rights should not be terminated because it would not be in the children’s best interest.

The mother testified that she lives in Chattanooga with her parents, both of whom suffer from medical issues. She said that her brother also lives with her and her parents in the three-bedroom house. The mother reported that she worked at a “call center” and that she had worked there for six months. She testified that she loved the children, that she would like the children to be returned to her custody, and that they could live with her at her parents’ home. However, upon cross-examination, the mother admitted that the 2006 judgment prohibited the children from being in the presence of her father and her brother.

The mother admitted that she had had limited contact with the children between late 2008 and 2011, when the petitions to terminate parental rights were filed. The mother said that communication between her and the custodians had broken down, resulting in difficulty arranging visitation. She said that she had been told that the custodians sometimes did not answer her telephone calls even when they were at home when she telephoned. She also complained that M.A. would refuse to get on the telephone when the mother asked to speak to her and that M.A. would tell the older child to tell the mother that M.A. was “busy.” However, the mother said that she had been visiting the children when the noncustodial relatives had the children for visitation. The mother testified that she objected to the custodians’ adopting the children because they would change the children’s last names and because they wanted to cut her out of their lives. She further testified that she would be willing to allow the noncustodial relatives to adopt the children because they would agree not to change the children’s last names and would allow her to continue to be involved in their lives.

The juvenile court entered judgments denying the mother’s custody petitions and terminating the parental rights of the mother to the children. Those judgments further denied the noncustodial relatives’ petitions seeking custody and terminated specified visitation for the noncustodial relatives; the judgments permitted visitation between the children and the noncustodial relatives at the discretion of the custodians. Both the mother and the noncustodial relatives timely appealed.

“A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004). A juvenile court’s judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). “Clear and convincing evidence” is “ ‘[evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala. Code 1975, § 6 — 11—20(b)(4)); see also Ex parte Mclnish, 47 So.3d 767 (Ala.2008) (explaining standard of review of factual determinations required to be based on clear and convincing evidence). A juvenile court’s factual findings in a judgment terminating parental rights based on evidence presented ore tenus are presumed correct. R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995). Furthermore, where a juvenile court has not made specific factual findings in support of its judgment, we must presume that the juvenile court made those findings necessary to support its judgment, provided that those findings are supported by the evidence. D.M. v. Walker Cnty. Dep’t of Human Res., 919 So.2d 1197, 1210 (Ala.Civ.App.2005).

The mother argues on appeal that the juvenile court erred in terminating her parental rights because, she says, the custodians failed to present clear and convincing evidence that no viable alternative to termination of those rights was available. The mother specifically argues that awarding custody or visitation to the noncustodial relatives could serve as a viable alternative to the termination of her parental rights. She posits that they should have been allowed to supervise visitation or that they should have been awarded custody so that they could assist in preserving the mother’s relationship with the children.

As this court has explained, an appellate court considering an appeal from a judgment terminating parental rights

“‘must review not only whether [the children] remain[] dependent, but also whether the [juvenile] court considered and rejected, based on clear and convincing evidence, the possible viable alternatives before terminating [the mother’s] parental rights.’” See Ex parte Ogle, 516 So.2d [243] at 247 [ (Ala.1987) ] (holding that the party attempting to terminate a parent’s parental rights has the burden to prove, by clear and convincing evidence, that there are no viable alternatives); J.D. v. Tuscaloosa County Dep’t of Human Res., 928 So.2d 303, 307 n. 1 (Ala.Civ.App.2005) (“When a nonparent such as DHR seeks to terminate parental rights, it must establish by clear and convincing evidence not only that the children are dependent but also that no viable alternative to termination of the parental rights exists.”); D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d [439] at 443 [ (Ala.Civ.App.2003) ] (“A nonparent who seeks to terminate a parent’s parental rights must prove by clear and convincing evidence that the children are dependent and that there are no viable alternatives to the termination of parental rights.”); AM. v. Lamar County Dep’t of Human Res., 848 So.2d 258, 259 (Ala.Civ.App.2002) (same). The need to consider all viable alternatives is rooted, in part, in the recognition that the termination of parental rights is a drastic step that once taken cannot be withdrawn and that implicates due process. Thus, the Beasley two-pronged test is designed to protect the welfare of thé child while also protecting the rights of parents. [Ex parte ] Beasley, 564 So.2d [950] at 952 [ (Ala.1990) ]. The requirement that clear and convincing evidence support the determination to terminate parental rights is based on the need to protect the due-process rights of the parents. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The party seeking to terminate a person’s parental rights thus has the burden of producing clear and convincing evidence that there are no viable alternatives to the termination of parental rights. Ex parte Ogle, 516 So.2d at 247; see also K.W. v. J.G., 856 So.2d 859, 874 (Ala.Civ.App.2003) (holding that the party seeking to terminate the parental rights of another bears the burden of proving that termination of those rights is the appropriate remedy).

C.E.W. v. P.J.G., 14 So.3d 166, 170-71 (Ala.Civ.App.2009) (quoting Ex parte T.V., 971 So.2d 1, 8-9 (Ala.2007)) (some emphasis omitted).

As the mother effectively argues, the record does not contain clear and convincing evidence demonstrating that no viable alternative to the termination of the mother’s parental rights existed. She points out that awarding custody or visitation to the noncustodial relatives is a viable alternative to termination of her parental rights in the present case. Although the juvenile court denied their petitions seeking custody, on which the noncustodial relatives bore the burden of proof, the custodians had the burden of proving by clear and convincing evidence that no viable alternative existed to the termination of the mother’s parental rights. The evidence presented at trial indicates that the children have visited with the noncustodial relatives nearly every Thursday and every other weekend since 2006. M.A. said she had no safety concerns about the visits, although she was concerned about the emotional toll on the children caused by having to “go back and forth.” Both sets of relatives admitted that some disparaging comments had been made in the presence of the children, and both sets admitted to asking the children to report on what was said and done when they were with the other relatives; however, both said that they had discontinued those practices. The evidence indicated that the children performed well in school, and, although there was some vague testimony that the children “act out” after visits, neither custodian explained what behaviors the children exhibited other than to say one cried more and that one was more aggressive toward the other because of what might have been perceived as favoritism. The record further reflects that the mother loves the children and that they love the mother; the record also reveals that the mother visits the children regularly with the aid of the noncustodial relatives, who, based on R.H.M.’s testimony, desire to assist the mother in maintaining her relationship with the children.

“ ‘Clear and convincing evidence’ is ‘[e]v-idence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M., 840 So.2d at 179 (quoting Ala.Code 1975, § 6 — 11— 20(b)(4)). We conclude that the evidence at trial does not reach the level of clear and convincing evidence demonstrating that no viable alternative to termination of the mother’s parental rights exists. The evidence indicates that the children are doing well in the custody of the custodians and that they have close bonds with the mother and with the noncustodial relatives.

No tendency of the evidence supports the conclusion that no alternative involving the custodians and the noncustodial relatives would be a viable method to preserve the children’s relationship with their mother and still provide a safe and stable living arrangement for the children. See L.R. v. C.G., 78 So.3d 436, 444 (Ala.Civ.App.2011) (reversing a termination of a mother’s parental rights and holding that a viable alternative to termination of her parental rights existed when the mother and the children had a relationship both the mother and the children desired to preserve, the children were in a stable relative placement, and one of the custodians had testified that the mother could visit the children even after her parental rights were terminated). Accordingly, we reverse the judgments terminating the mother’s parental rights.

The noncustodial relatives appeal the judgments insofar as they denied their petitions seeking custody of the children and terminated the award of specified visitation to them. The noncustodial relatives filed petitions seeking custody of the children, in which they asserted that the children’s best interests would be better served if custody were modified. Once a juvenile court has placed a dependent child into the “permanent” custody of a proper caregiver, the dependency of the child ends and any further change of custody is governed by the standards set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). See Ex parte J.P., 641 So.2d 276, 278 (Ala.1994) (applying the McLendon standard in a custody dispute between two sets of relatives when one set of relatives had been awarded custody under a prior judicial order). Thus, the noncustodial relatives were required to meet the McLendon standard in order to be entitled to a modification of the custody of the children. As our supreme court reaffirmed in Ex parte Cleghorn, 993 So.2d 462, 466-67 (Ala.2008):

“In Ex parte McLendon, we held that the trial court cannot order a change of custody ‘ ‘unless [the party seeking the change of custody] can show that a change of the custody will materially promote [the] child’s welfare.’ ’ 455 So.2d at 865 (quoting Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947)). We noted in Ex parte McLendon that ‘[i]t is important that [the party seeking the change in custody] show that the child’s interests are promoted by the change, i.e., that [the party seeking the change in custody] produce evidence to overcome the ‘inherently disruptive effect caused by uprooting the child.’ ’ 455 So.2d at 866.”

Our supreme court has also stressed that “[t]he McLendon standard is a ‘rule of repose,’ meant to minimize disruptive changes of custody because this Court presumes that stability is inherently more beneficial to a child than disruption.” Ex parte Cleghorn, 993 So.2d at 468. As noted above, the record contains evidence indicating that the children make good grades and are doing well in the custody of the custodians. Nothing in the record would support the conclusion that the children’s best interest would be served by modifying custody and removing the children from the home of the custodians. Accordingly, we affirm the juvenile court’s judgments insofar as they denied the noncustodial relatives’ custody petitions.

The noncustodial relatives also appeal the juvenile court’s judgments insofar as they terminated their rights to specific visitation. In contravention of Rule 28(a)(10), Ala. R.App. P., the noncustodial relatives have not presented authority for their argument that it was not in the children’s best interest for their specific visitation rights to be terminated; because we are not required to perform a party’s legal research, the failure to present authority for an argument often results in a determination that the argument was waived and that the judgment should be affirmed on that issue. White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008). (“Rule 28(a)(10) requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived.”); Spradlin v. Birmingham Airport Auth, 613 So.2d 347, 348 (Ala.1993) (quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990)) (“ ‘Where an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court’s duty nor its function to perform all the legal research for an appellant.’ ”). Although we may sometimes overlook such an omission, we typically do so when the issue has been adequately addressed by the appellee and the appellee would not be prejudiced by our consideration of the issue. See Kirksey v. Roberts, 613 So.2d 352, 353 (Ala.1993) (explaining that an appellate court may consider an argument that is not compliant with Rule 28(a)(10) if the court is able to adequately discern the issues presented); Bishop v. Robinson, 516 So.2d 723, 724 (Ala.Civ.App.1987) (explaining that an appellate court may consider an argument that is not compliant with Rule 28(a)(10) when the appellee adequately responds to the issues raised by the appellant in brief despite the noncompliance); and Thoman Eng’rs, Inc. v. McDonald, 57 Ala.App. 287, 290, 328 So.2d 293, 295 (Civ.1976) (explaining that an appellate court may consider an argument that is not compliant with the predecessor to Rule 28(a)(10) when the argument “has been raised in a manner which is fair to all concerned”). The fact that the argument may well have merit does not change the fact that an appellant is required to adequately argue an issue before the court. In the present case, we have not been favored with a brief from the custodians. Thus, we are constrained to affirm the juvenile court’s judgment insofar as it terminated the specific visitation rights of the noncustodial relatives because of their failure to provide the court with legal authority supporting reversal.

2111247 — REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, MOORE, and DONALDSON, JJ., concur.

2120407 — AFFIRMED.

THOMPSON, P.J., and PITTMAN and DONALDSON, JJ., concur.

MOORE, J., concurs in part and dissents in part, with writing.

MOORE, Judge,

concurring in case no. 2111247 and concurring in part and dissenting in part in case no. 2120407.

As to case no. 2111247, I concur to reverse the juvenile court’s judgments to the extent they terminated the parental rights of B.C. (“the mother”). I believe that A.A. and M.A. (“the custodians”) failed to adequately prove that there was no less drastic alternative than termination of parental rights that would adequately protect the children from parental harm. The evidence in the record indicates that the children are thriving in the current custody arrangement while maintaining beneficial contact with the mother through their visits with R.H.M. and H.R.M. (“the noncustodial relatives”), so that there is no reed to terminate the parental rights of the mother.

As to case no. 2120407, I concur to affirm that part of the juvenile court’s judgments denying the custody-modification petitions filed by the noncustodial relatives. I, however, dissent from the affir-mance of the modification of the noncustodial relatives’ visitation rights.

Upon terminating the mother’s parental rights, the juvenile court modified the specified visitation schedule previously awarded to the noncustodial relatives and substituted a new award granting visitation solely at the discretion of the custodians. The noncustodial relatives argue that, in the past, when the custodians exercised sole discretion as to visitation, the custodians effectively denied them any visitation. Thus, they maintain, the revised visitation provisions will enable the custodians to preclude any visitation between the children and themselves, as well as between the children and the mother, in the future. I agree.

This court has many times noted that, when a trial court awards visitation at the sole discretion of a custodian, the trial court, in effect, awards no visitation at all. See Pratt v. Pratt, 56 So.3d 638, 643 (Ala.Civ.App.2010) (citing numerous cases on point). A custodian can always decide that requested visitation is not practical or convenient and deny visitation without violating any provision of a judgment that would subject them to being held in contempt. Thus, this court has held that, when a court determines that some visitation serves the best interests of the child, the trial court should craft its judgment to specify the visitation schedule in order to assure that visitation occurs. Id. By finding that the noncustodial relatives should have visitation with the children, but failing to specify a schedule for that visitation, the juvenile court erred, and its judgments therefore should be reversed.

Furthermore, this court has reversed the judgments terminating the mother’s parental rights because the record shows that the best interests of the children would be served by maintaining visitation between the mother and the children. The evidence indicates that the mother visits with the children when they visit with the noncustodial relatives. Therefore, this court at least implicitly recognizes that maintaining a scheduled visitation arrangement between the children and the noncustodial relatives serves the best interests of the children so as to constitute a viable alternative to the termination of the mother’s parental rights. Our reversal of the judgments terminating the mother’s parental rights requires reversal of the judgments modifying the visitation rights of the noncustodial relatives in order to assure that the mother maintains consistent and meaningful contact with the children.

Although acknowledging the merits of the noncustodial relatives’ visitation argument, 143 So.3d at 200-01, the main opinion refuses to address that argument based on the noncustodial relatives’ noncompliance with Rule 28(a)(10), Ala. R.App. P. Although I recognize that the noncustodial relatives did not cite pertinent legal authority in support of their position, they did frame their argument sufficiently for this court to understand its factual and legal merits. Our supreme court has held that, when “we are able to adequately discern the issue [the appellant] presents, in spite of his failure to present authorities in support of his claim, we will not affirm merely because of a technicality.” Kirksey v. Roberts, 613 So.2d 352, 353 (Ala.1993); see also Dubose v. Dubose, 964 So.2d 42, 46 n. 5 (Ala.Civ.App.2007) (“[Tjhis court may choose to affirm a case on the basis of Rule 28[, Ala. R.App. P.,] when an appellant’s brief fails to comply with the rule, but this court is by no means required to do so.” (emphasis omitted) (citing Kirksey, 613 So.2d at 353)). Moreover, this court has held that, when the best interests of a child are at stake, technical compliance with procedural rules is a secondary consideration at best. See Fermín v. Lewis, 77 So.3d 164, 171 (Ala.Civ.App.2011). Given the posture of the case, and considering the importance of the interests at stake, I believe this court should exercise its discretion to overlook the noncustodial relatives’ noncompliance with Rule 28.

      . The record does not contain the 2006 judgment; however, the parties are in apparent agreement regarding its provisions, and they testified regarding those provisions at trial.

      . The petitions also sought termination of the parental rights of the fathers of the children.

      . The judgments also terminated the rights of the children’s respective fathers. Neither father has appealed the judgment terminating his parental rights.

      . The noncustodial relatives appealed the judgments to the DeKalb Circuit Court. However, because the record was declared to be adequate for appeal to this court, see Rule 28(A)(1)(a), Ala. R. Juv. P., the circuit court transferred their appeal to this court. Rule 28(d), Ala. R. Juv. P. We consolidated the noncustodial relatives' appeal with the mother’s appeal.

      . The juvenile court might have modified the visitation schedule based on its judgments terminating the parental rights of the mother. In light of our reversal of the termination-of-parental-rights judgments, the juvenile court should have an opportunity to reconsider its ruling on the noncustodial relatives' visitation.

      . Currently, the mother has no specified visitation rights of her own.