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.”

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