Awarding Joint Custody in Alabama Over Mom’s Objections

It’s easy in Alabama to get joint custody if both parents ask for it. In fact, the statute requires it. A recent Alabama Court of Civil Appeals case deals with another set of facts, where one of the parents, in this case Dad, asks for joint custody, and the other, in this case Mom, insists on sole custody. It’s Hyche v Hyche, Case No. 2150774 (Ala. Civ. App. December 2, 2016). The trial court awarded joint custody, and this is Mom’s appeal.

The first principal the appeals court stated is that the review on appeal of a custody determination based on ore tenus evidence is quite limited: “the trial court’s custody judgment is presumed correct and should be reversed only if the judgment is plainly and palpably wrong.” Smith v. Smith, 887 So.2d 257, 262 (Ala. Civ. App. 2003).

The appeals court affirmed the trial court’s judgment on the issue of custody, and in so doing built a roadmap for the right way to make it easier to affirm any other such judgment. The appeals court noted with approval the language of the trial court’s opinion, reciting that the parents stood on equal footing with respect to child custody and describing the factors the court had considered:

The factors that enter into the court’s custody determination include the child’s age and sex and each parent’s ability to provide for the child’s educational, material, moral, and social needs. Tims v. Tims, 519 So.2d 558 (Ala. Civ. App. 1987). Likewise, it is proper for the court to consider the “characteristics of those seeking custody, including age, character, stability, mental and physical health … [and] the interpersonal relationship between each child and each parent.” Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981).’

The appeals court quoted at length from the Alabama joint custody statute, § 30-3-152. After analyzing the arguments made by each parent, the appeals court concluded: “On appeal, the mother essentially argues that the trial court should have interpreted the evidence presented in particular ways or placed more emphasis on certain portions of the evidence. . . . Because “we are ‘charged only with determining whether the evidence was sufficient to support the trial court’s judgment’ and not with determining whether there was a sufficient basis for a different judgment than that entered by the trial court, we conclude that the trial court acted within its discretion in awarding joint legal and physical custody of the child and that its judgment was not plainly and palpably wrong such that it warrants reversal. Henning v. Henning, 26 So.3d 450, 455 (Ala. Civ. App. 2009) (quoting Ex parte Ederer, 900 So.2d 424, 426 (Ala. 2004)).”

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