Applying the Alabama Relocation Statutory Presumption To an Initial Determination of Child Custody

The Alabama Parent Child Relationship Protection Act, Ala. Code §30-3-160 et seq., better known as the Relocation Act, places Alabama at one end of the spectrum when it comes to holding custodial parents (usually mothers) and children in place. It sets out a last of custody considerations in §30-3-169.3 that courts are to apply in deciding whether a move of the children is in the children’s best interest. More importantly, however (and this is what tends to anchor custodial parents), Alabama adds a presumption in §30-3-169.4: In proceedings under this article unless there has been a determination that the party objecting to the change of the principal residence of the child has been found to have committed domestic violence or child abuse, there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child.”

A post Saturday dealt with the alimony and attorney’s fee issues in Lackey v. Lackey, Case No. 2070603 (Ala. Civ. App. January 9, 2009). This note looks at the same case but deals with its discussion of the relocation act, specifically whether the presumption against relocation applies to an initial determination of custody or only to changes in residence occurring after an order of custody has been issued. The appeals court’s decision: the presumption does not apply to initial custody determination.

The appeals court began by stating that this question is one of first impression in Alabama. It noted that the presumption speaks in terms of a “change of principal residence” of a child, so it looked at the definition of that term in §30-3-161(1): “A change of the residence of a child whose custody has been determined by a prior court order, whether or not accompanied by a change of the residence of a person entitled to custody of the child, with the intent that such change shall be permanent in nature and not amounting to a temporary absence of the child from his or her principal residence” (emphasis added). Because in this case there had been no prior court order, the appeals court determined that this move did not constitute a “change of principal residence” as that term is defined in the presumption and that, therefore, the presumption did not apply.

The husband also argued that the trial court’s application of the custody considerations in §30-3-169.3 should have resulted in a decision to deny the relocation. The appeals court listed the custody considerations and stated the reasons it declined to reverse the trial court:

In the present case, it is clear that the wife had been the primary caregiver for the children. In fact, the husband had lived primarily in a different location from the children for two years leading up to the divorce. Further, although it is clear that the children had a good relationship with the husband’s family around Birmingham, the evidence indicated that the children had an equally good relationship with the wife’s family in Kentucky. Both children were young — ages six and two years –at the time of the trial. Thus, the change of residence would likely have an insignificant impact on the children. Although the children would be further away from the husband’s home in Birmingham, the wife had taken measures to ensure that the husband would be able to communicate with the children regularly. For example, she had purchased a webcam for the children to communicate with the husband and a scanner and fax machine to fax the husband documents pertaining to the children.

Further, the wife testified that the husband had not intended to make Birmingham his permanent home and that he had job opportunities near the Lexington area. The wife testified that she would have no objection to the husband’s moving near her and the children. In fact, she testified that she had sought to involve the husband in the children’s lives and would continue to do so; she also testified that she would comply with the court’s orders regarding the children. Finally, the wife testified that moving to Lexington would allow her to work as a nurse while the children are cared for by family members, and she testified to the extensive family support she would have in Lexington. On the other hand, she testified that neither she nor the husband had family in the Birmingham area who could care for the children in her absence.

Based on the foregoing evidence, we conclude that the trial court could have determined that the factors set forth in § 30-3-169.3 weighed in favor of allowing the wife to relocate to Lexington with the children.

The boldface is from me, because I want to lift it up and encourage more thought about it. This statement has some intuitive appeal, because one can argue that pre-schoolers are less likely to be participating in extra-curricular activities and perhaps less likely to have formed peer-to-peer relationships. I’m not aware of empirical studies supporting the assertion, however. Are a six-year-old and a two-year-old likely to feel an “insignificant” impact in moving from Birmingham to Lexington? Does the appeals court have the prerogative to assume this in its opinion? I’m honestly not criticizing; I’m simply encouraging us to think about the question.

Appeals Court Judge Tommy Bryan concurred in the result but wrote his own opinion, describing what he called “a troubling inconsistency” within the Relocation Act. On the one hand, said Judge Bryan, the Act “promotes the general philosophy in this state that children need both parents, even after a divorce.” On the other hand, he said, the definition of a “change of principal residence” excludes children from this protection unless a court has already issued an order concerning their custody. “How can it be said that our state policy regarding the importance of maintaining the parent-child relationship is furthered by extending to one “class” of children — those who have been the subject of a prior custody determination — a rebuttable presumption disfavoring a change in principal residence while withholding that rebuttable presumption from those children who do not meet that criterion?” Judge Bryan invited the legislature to reconsider the wording of the presumption. In the meantime, however, he said, he had no choice but to concur with the majority opinion, because considerations like these “are solely in the province of the legislature, not the province of the courts.”

17 comments

  1. Richard Brewer says:

    My case is very similar to Lackey v. Lackey; and for that reason, I contacted Mr. Lackey to discuss our cases. My attorney filed a motion to stay my case based on Mr. Lackey’s rehearing; however, the motion was denied today. Despite the similarities; I see some difference in the two cases, but I do not know if these issues will cause the appellate court to look at my case differently. In any event, the statute, as interpreted, does absolutely nothing to “promote the general philosophy in this state that children need both parents.” Even the name, “Alabama Parent Child Relationship Protection Act”, is an empty promise. I truly doubt that the authors of the statute intended to exclude those children that were not fortunate enough to have a custody order in place before the parent that is intending to relocate has been awarded physical custody. Even the custody orders that were written before the act was passed are provided protection under the statute; but my three year old daughter and I are simply excluded and brushed aside. I believe the chances that a parent will relocate are far greater at the time of a divorce than any other time. It is this special circumstance, the initial custody determination, that seems to be excluded from the statute. If the language does not match the general intent of the law, what purpose does it serve?

  2. I have a situation, where the mother of our two children has fled to over 365 miles from our principal residence. There are false allegations of abuse or the threat of abuse. There was none. She left, and stated that when she did that she was not keeping our kids from seeing me. She left me destitute, no money for food or gas. I have only breifly spoken to our children. She has stated that when she left she did not have any obligation to support me any more. She also stated that all of this was her choice. There is nothing I can do to see our kids. Unfoutunatly, we are definatly headed to divorce. There is no reasoning with her. She said that she wanted an uncontested divorce, but everything was on her terms, anything that I proposed (having our kids closer for visitation purposes) was met with her saying that it was going to be a nasty court battle instead. Her way or no way!

  3. jan says:

    I have a question concerning the relocation act. Aug. 08 a relocation letter was mailed to my ex stating my intent to relocated 80-90 miles away where I have family members. I did not receive an appeal. As the move comes near(July 09) he has been telling my 16yr old daughter that he will try to keep the kids (16yr old and 5yr old son). My 16yr old is considering staying here to finish at her present high school. Will that give him any leverage to try to get our son. We have joint custody with me as the primary parent. He has promised her several things to stay i.e. car, larger bedroom at his house. He has told my son that he would buy him a 4-wheeler to stay with him. Can he do anything legally at this point?

  4. Lee Borden says:

    Assuming your notice to Dad complied with the statute and that Dad has not objected within the period allowed, you no longer have an issue with the relocation act, so the question now is simply one of joint custody. Capture carefully the bribes Dad has offered his children to live with him; if I were a judge, they would make me extremely hesitant to trust any expression of preference from the children to live with their Dad.

    Yes, he can do something legally at this point, but if the judge is understand this the way I am, Dad’s options would be outside the relocation act, based simply on a material change in circumstances, and he would need to overcome the McLendon rule.

  5. RHONDA TAYLOR says:

    I am located in rhode island. However, my son went to go visit his aunt and uncle in Alabama. When they failed to return my child to me I bought a ticket and came to pick my child up in Alabama As soon as they found out I was coming they filed an ex-parte’ for custody of my child. The child had not been in Alabama long enough to be considered a resident of Alabama. But Alabama has a backwords law enabling anyone to gain custody of a child even with no background check on mother. I never had DCYF in my home and had to fight for my child for over a year. Very expensive for me to travel down there to stay in hotel and make arrangements for my other children at home to be taken care of. I ended winning after in the trial his aunt stated when he was brought to Alabama. However, I was away from my child for over a year with no visitation. Alabama law is far behind the rest of the world when it comes to thier child custody Alabama caused great harm to my family as well as enabling a family member to try to claim my child as their own since she could not have one. Damages, money. Never got reimbursed but I did finally get my son returned to me. My question is why do you have this law and I beleive we set a president in Alabama? If we did did it change anything for this process or no? case was Stratton Vs Taylor

  6. cathy says:

    If the relocation letter contains a new meeting place(halfway between his house and my new one)and there was no appeal, then does he have to meet me there? He says his lawyer told him that he didn’t have to and that I would have to take the children to his house. Which is correct?

  7. Lee Borden says:

    Hard to say, cathy. In general, travel is the responsibility of the NCP, so another possibility (in addition to the two you mentioned) is that it’s up to Dad to travel to where you are to pick up the children. I’m not advising you to insist on that, because I don’t have all the facts. You may need to visit with your lawyer about the right strategy to pursue.

  8. Phillip Lackey says:

    Lee, I am curious to know your thoughts in regards to the passage you quoted from the Alabama Court of Appeals in regards to the speculative nature of what would occur should the mother be allowed to move. Specifically, if the mother remained unemployed after moving; the presumed extensive family network never materialized; and the mother acted ifurther to distance the children from the father: would this constitute a material change? Fraud?

  9. Lee Borden says:

    I don’t know enough about the case, so I don’t have an opinion. If you think there’s been a material change in circumstances since the court issued its ruling, you may want to visit with your lawyer about it.

  10. Mandy Shepherd says:

    I was forced to move back to Alabama after my husband had skipped state lines back to his home in Alabama where we were married. We had moved to New Hampshire where my family resides and changed our drivers licenses and we were both working when he disappeared with our two small children. I immeadiately got an ex-parte order and it stated to have the children brought home to me immeadiately and my husband to stay in the state for court. He got to Alabama and filed for divorce. My ex-parte was signed by NH first, but the state of AL took jurisdiction, even though NH thought jurisdiction lied with them. So I moved back, got divorced with the primary custody of the children and now he rarely sees the kids, talks to the kids, and is behind in child support. I have no family here, it is a rural area with no employment opportunities, and I want more then anything to get back to my family, my ex will not allow my leaving with the children, but it makes little sense to stay. What can I do?

  11. Lee Borden says:

    Talk to your lawyer about giving the notice of relocation to Dad. If you are describing the facts accurately when you say “now he rarely sees the kids, talks to the kids, and is behind in child support,” your lawyer may tell you that you stand a good chance of relocating.

  12. Rich says:

    Mr. Borden,
    In my case, my ex was allowed to relocate under the loophole that there was no existing custody order in place prior. The judge allowed her to relocate to New Jersey. I am allowed to have my daughter one week a month, but I am responsible for all travel expenses. The judge ruled that I would not have to pay any child support in lieu of the anticipated travel expenses. I am now entering into a Chapter 13 bankruptcy that stretches my expenses so thin that I don’t know how I will be able to manage to see her from a financial point of view. At the time of my court case, I thought that there was no way a judge would let her move that far away to begin with, but the court order seemed like it was merely copied from another order where a parent had perhaps moved to another county. I feel that there are a few things that make the order unfeasible. Seeing my daughter for one week per month would require: three round trip tickets to pick her up via airline (or four days of travelling in a car) and managing to find daycare for one week a month. In addition, most of the quality time that we might spend together would be wasted travelling to or from New Jersey. Like Mr. Lackey, many of the opportunities that she presented in court were just excuses to justify her wanting to move. She still lives at home with her parents, and my daughter does not even have her own bedroom. I have tried to work out arrangements to see my daughter less often for longer periods of time. My ex is unwilling ot compromise or negotiate anything beyond the court order itself, knowing that I cannot see my daughter very often with the current terms of the court order. Do you think that it is likely that a judge would change the terms of the order until my daughter starts school–she just turned four and will not start kindergarted until 2011. In my current financial situation, I imagine that I would have to represent myself in court. I know that I run the risk of things not going well, but I truly want to be a part of my daughter’s life and I don’t really know of any other options. I decided to post this on your blog because I read many entries about a year ago, and you seem to be the only voice of reason in the legal industry. Regardless of wheter you are able to offer advice in my case, I appreciate that you give so much to helping others. I read your “Mission Statement” and “Stuff I Need To Remember”, and I think that everyone, including myself, would do well to read and adopt some version of both.

  13. Lee Borden says:

    I don’t know your judge, but your description of the challenges you face in trying to be a good father to your daughter are appealing to me, so I would hope they would be to the judge as well. If you’re trying to minimize expenses (and I know you are), spend some time in the public library reading about the way young children develop. Make sure you are prepared to discuss with the judge how the schedule you advocate is carefully calculated to ensure quality time for you but also to minimize any adverse effect on your daughter’s development. Also, be prepared to show everything you have done within the confines of the existing order and your finances to enhance your relationship with your daughter. For example, if you have the right to phone calls with her, make sure you’re taking advantage of them.

    On a brighter note, as your daughter advances in age, there will be more and more ways you and she can stay in touch without physical travel, like toll-free telephone, video chats, web sites, e-mail, etc., all without spending gobs of money.

  14. Robert says:

    My case in still up in the air. My wife katherine left in August 09 and filed for a PFA order to stop me from seeing our three kids. When we went to court i was told if I didn’t go to class, She would leave the state (Alabama)and I would never see our kids again. I went to the classes I was asked to but the court keep the PFA in effect and she leave the state anyway and moved to Texas. She has now filed for divorce. I file to the court to find out wht they didn’t keep the agreement. I was not told I was just given a new hearing date and told the PFA was still in effect until the judge said otherwise. Our new hearing was sat foe 23 Nov and My wife told the court on the 19 Nov she could not comes and they grant her a continous but have not set a new date. It have been over 108 days since I’ve seen my kids and now I’m facing divorce and have no family here. We had moved down here to help my father out and he died in January 09. I work for a school and have never had any problem and our home live was so great and loving. Now she has file and said that I have been mentaly and phsically curel our whole marriage. We have three kids and so much happy times I’m at a lose. I found out she has been in contact with her ex-boyfriend who tried to kill her and caused her to have a misscairge with who would have been our first child now she is talking about taking our kids to be with him. It sound like she is going to use this law because she has temportary custey to claim their primary resident is now in Texas if the divorce is not stop and yes I know I’m pray that God stop it. Is there anything I can do. I can’t see or talk to my kids and I’ve nothing wrong but Love my family and try to raise our kids with her the way God says to with Love. ( She found out I having a medical problem with my heart and my dad died and she got scared and I quess she started looking and I trusted her and didn’t think she would do that. We both to my knowlegde were Christians. I stand with God I’ve not sure who she stands with She is not acting the the person I knew before she left. Her lawyer is being paid for withour tax dollars and She got money from united way to leave the state. How can I get any help for anybody. She is not telling the truth and getting her way. Please advise.

  15. Lee Borden says:

    You really need a lawyer for this one. The ramifications are too great and the issues too complicated for you to try to poor-boy a divorce involving interstate visitation and allegations of domestic violence.

  16. Shelly Miller says:

    I have a question about the relocation letter, I wrote the notice to relocate 30 days ago and have not been given a response,does he have to respond to me? Is my next step to change visatation with the courts or can I do this myself/
    Thanks

  17. Lee Borden says:

    If you’ve complied with the statute and provided the notice as it describes, and Dad has not responded, you’re now free to move. Whether your suggested changes to visitation are also approved by Dad’s silence is not at all clear. I’m sorry not to be able to give you more clarity, but I can’t.

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