Anybody Got Any Facts To Back This Up?

Alabama family law judges know they have to base their rulings on some kind of factual evidence. This case clarifies how the process works.

We’re talking about Rose v. Jackson, Case No. 2071057 (Ala. Civ. App. October 16, 2009). Mom and Dad divorced in 2007. Mom got custody of the child, Dad visitation and the duty to pay child support. Four months later Dad filed to change custody, arguing that the court should find Mom in contempt for failing to comply with visitation, for taking the child out of a preschool program, and for not paying the car payment for the loan in the husband’s name the decree ordered her to pay.

After a hearing, the Montgomery County Circuit Court changed custody to Dad and awarded Mom visitation. Mom appealed. The appeals court reversed.

The appeals court looked at each of Dad’s three arguments in order. First, Mom’s failure to comply with the visitation schedule. The appeals court cited Kelly v. Akers, 793 So. 2d 821, 826-27 (Ala. Civ. App. 2001) and Vick v. Vick, 688 So. 2d 852 (Ala. Civ. App. 1997) for the proposition that failure to comply with visitation is not sufficient alone to justify a change of custody.

With reference to Mom’s removing the child from preschool, the appeals court cited evidence that Dad had himself had helped to prepare the paperwork for the preschool the child did attend, and it also pointed out that the child had been admitted into the magnet school kindergarten; “none of these facts indicates that the child’s welfare had been affected in any manner.” Rose at 3-4.

Finally, relating to Mom’s failure to pay the car loan, the appeals court said this: “The father did not indicate that the mother’s default on the lease-purchase agreement had in any way affected the child’s welfare; in fact, he testified that the mother had been able to afford to buy a used vehicle after the leased vehicle had been repossessed.” Rose at 4.

So the appeals court, having examined the three key justifications for a change in custody, ruled that the first dealing with the visitation schedule was insufficient alone and that all three were unaccompanied by any evidence that they had affected the child at all, let alone risen to the high standard of the McLendon rule (that the change in custody must materially promote the child’s best interest and that the benefits of the requested change must more than offset the inherently disruptive effect caused by uprooting the child):

The father failed to establish how any of those actions by the mother had affected the child’s welfare. Moreover, the father did not show that material changes affecting the child’s welfare had occurred since the original award of custody, nor did he demonstrate how the positive good brought about by a change in custody would more than offset the disruptive effect of uprooting the child. Thus, none of the reasons cited by the trial court are sufficient to meet the standard set forth in Ex parte McLendon to support a modification of custody in this case. Rose at 6.

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