I’m not sure the Alabama Court of Civil Appeals realizes the full import of what it has just done. For as long as I can remember, judges have been careful to fashion visitation restrictions based on objective criteria. Specifically, they have been careful not to give to one parent the authority to stop another parent’s visitation with the child they share based solely on that parent’s opinion. About anything. Now in Watkins v Lee, Case No. 2150748 (Ala. Civ. App. January 6, 2017), the appeals court let stand a trial court’s ruling that a mother can in her discretion stop visitation with the father “if she believes that he is under the influence of drugs or alcohol or that he is placing the children in an unsafe environment or a place of danger.”
If, as they say, hard facts make bad law, these are hard facts. There’s no question that Dad is one bad dude. He has a history of drinking to excess, using and selling drugs, and beating up Mom. Like most violent men, he has a great story to tell about why. Basically, I only beat her up – repeatedly – ’cause she lied to me about my other child.
I understand the dilemma the trial court faced. It wanted to give this mother – who never married the father but shared two children with him – the strongest possible toolset to protect herself and her children. However, handing any parent the discretion to stop the other parent’s visitation is fraught with peril, as I fear we are about to find out.
What the trial court could have done instead would be to set up a bristling series of drug and alcohol tests that Dad would have to maintain in a clean state as a prerequisite to his continued visitation rights. Then Mom could stop the visitation for noncompliance. That’s objective; yet it protects the children. The trial court could also have required that visitation be supervised and/or occur at a designated public place where the children’s safety could be more easily protected.
The court’s opinion is Per Curiam, with a special concurrence by Judge Thomas and a dissent by Judge Moore. It’s possible that this bad law is happening because of bad lawyering. The Per Curiam opinion notes Judge Moore’s dissent and acknowledges the arguments he makes in it, namely that Dad’s fundamental right to access to his child is being controlled by Mom. But in a breathtaking dismissal, the main opinion says it didn’t need to consider those arguments because the father didn’t submit enough legal decisions backing them up.
“Despite their relevance to his appeal, the father has not referred this court to any of the authorities upon which the dissent relies in reaching its conclusion. Indeed, the father has not cited any authority discussing limitations on a custodial parent’s discretion to deny a noncustodial parent’s visitation.”
Justice Thomas offered a special concurrence in which she argues that the provision giving Mom the power to stop Dad’s visitation did not provide Mom more discretion than she would have in its absence, because a parent is never required to comply with visitation if it would be unsafe for the children. As Judge Moore points out in his dissent, however, “I agree that a custodial parent has a duty to protect the safety and welfare of his or her child from an objective threat of harm, even one posed by a noncustodial parent, but the restriction in this case authorizes the mother to deny the father visitation in broader circumstances. Under the language of the restriction, the trial court has given the mother the absolute discretion, based on her purely subjective observations or conclusions, to deny the father visitation.”
Judge Moore didn’t say it, but there’s also a vast difference for Dad in this case from where he would have been if Mom simply denied visitation because of concern for the children’s safety in the absence of a provision authorizing her to do so. If she denied visitation without authorization, Dad can bring an enforcement petition, with its accompanying risk that she will be held in contempt if she knowingly violated the judge’s order. Here, by contrast, even if Dad is stone cold sober and thoroughly protective of the children, everything Mom will have done, even if she’s just confused about Dad’s sobriety, is in compliance with the judge’s order. Dad’s only remedy, apparently, is to seek a modification of the judge’s order on the grounds that there’s been a material change in circumstances. Tough standard.