Appeals Court Approves Equal Time Parenting Over Mom’s Objection

There are some Alabama counties, notably Jefferson, where the divorce court judges are resolutely opposed to equal time parenting. We now know that this is not the case in the Alabama Court of Civil Appeals.

The case is Cleveland v. Cleveland, Case No. 2071116 (Ala. Civ. App. March 20, 2009), a divorce case from Marshall County. The trial court divorced the parties on April 17, 2008 after an ore tenus hearing. It ordered joint legal custody of the parties’ two children. It ordered joint physical custody of the parties’ three-year-old son, with Mom and Dad to swap weeks with him. The court ordered that Mom would have sole physical custody of the parties’ infant daughter until her first birthday, at which point the custody would change to joint physical custody, with the daughter’s weekly rotation to match that of her older brother. The court ordered Dad to pay Mom $261 per month in child support.

Mom appealed, arguing the court erred when it gave Dad joint legal custody of both children, when it gave Dad joint physical custody of the son, when it gave Dad later joint physical custody of the daughter, when it failed to establish a complete joint custody plan in accordance with Ala. Code § 30-3-153, and when it calculated child support. In pressing her argument against joint custody, Mom said the trial court erred because of what she said was a history of domestic violence on Dad’s part.

The appeals court dealt first with the court’s order providing for a change to joint physical custody later when the daughter reached the age of one year old. The appeals court agreed with Mom, saying at p. 3:

Alabama law forbids automatic modification clauses that change physical custody of a child based on future contingencies. See Hovater v. Hovater, 577 So. 2d 461 (Ala. Civ. App. 1990); and Korn v. Korn, 867 So. 2d 338 (Ala. Civ. App. 2003). Once a trial court awards physical custody of a child to one parent, the trial court may change that award based only on proof that, due to a material change of circumstances, the change would materially promote the best interests of the child and would more than offset the inherent disruption in the life of the child. See Ex parte McLendon, 455 So. 2d 863, 865-66 (Ala. 1984). A provision automatically changing custody of the child based on some future event improperly relieves the noncustodial parent of his or her burden of satisfying the McLendon standard and can only be “premised on a mere speculation of what the best interests of the children may be at a future date.” Hovater, 577 So. 2d at 463.

On the issue of joint custody and domestic violence, the appeals court noted that, although the mother introduced evidence that Dad had injured the son while trying to wrestle him away from Mom and that Dad had overturned a table during an argument, there was also evidence on the record disputing Mom’s account.

In its judgment, the trial court did not make written findings of fact regarding the mother’s allegations of domestic violence. “‘[W]here the trial court does not make specific findings of fact, it will be assumed that the trial court made those findings that were necessary to support its judgment, unless the findings would be clearly erroneous.'” Mayer v. Mayer, 628 So. 2d 744, 746 (Ala. Civ. App. 1993) . . . “We must assume that the trial court found either that the alleged acts of domestic or family violence did not occur, or that the acts did not constitute domestic or family violence, or that the father had rebutted the presumption that custody of the child should be placed with the mother by, among other things, proving that the acts of domestic violence had not negatively impacted the child.” Cleveland at 7-8.

Mom also argued that weekly swapping was unworkable because of the level of conflict between the parents. The appeals court noted, however, that the parties themselves had reached agreement on the weekly swapping plan more than a year before the trial and that both parties testified at trial that no major issues involving it had arisen while it had been in effect that the parties were not able to work out between themselves.  “The record does not support the mother’s assertions on appeal that the parties are so hostile toward each other that the award of joint legal custody is unworkable.” Cleveland at 9.

The appeals court also shrugged off Mom’s argument that Dad’s work schedule made joint custody inappropriate (pointing out that the paternal grandfather was available to care for the child when Dad needed to work) and that Dad lived too far away (pointing out that Mom presented no evidence of problems caused by the distance). On Mom’s argument that the trial court erred by not establishing a joint custody plan, the appeals court said that Mom had waived this by not raising it in trial court.

Finally, responding to Mom’s argument that the trial court erred in calculating child support, the appeals court stated that Alabama Rule of Judicial Administration 32 is clear about the method for calculating child support in split custody situations but not in those involving joint custody or equal time arrangements. The trial court was empowered to deviate from the guidelines in joint custody situatuons, the appeals court said, but it needed to explain the reason for the deviation on remand.

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