Ruling on Alabama Relocation Statute
We have our first appellate case now interpreting the Alabama Parent Child Relationship Protection Act, and it permits the relocation to occur. In Clements v. Clements, Case No. 2030768 (Ala. Civ. App. February 11, 2005), the Appeals Court affirmed the judgment of the trial court in Autauga County. The trial court’s opinion hadn’t expressly said so, but the Appeals Court deemed the trial court to have found that the relocating mother had succeeded in overcoming the presumption against relocation. This therefore shifted the burden to the non-relocating father, who sought a transfer of custody from the mother to himself.
The court ruled that any change of custody continued to be governed by the McLendon standard and that it would not disturb the finding of the lower court on ore tenus evidence that the father had not met his burden.
The father and the mother both presented evidence regarding their relationship with the child and their fitness as parents. It is clear that both parties love the child and want the trial court to act in the child’s best interest. There was ample evidence presented to the trial court from which it could have found that it was in the child’s best interest to move with the mother to New York. During the time that the child has been in the mother’s custody, the mother has seen to the child’s medical needs and educational needs. There is little evidence that the mother’s devotion to the child’s needs will change after moving to New York. Also, the mother has participated in counseling, along with Dr. Teitel (the mother’s new husband) and the child, to encourage a smooth transition for the child in New York.
The evidence supports the trial court’s determination that the child’s best interest and welfare will not be materially promoted by transferring custody of the child to the father. Ex parte McLendon, supra. There is no doubt that the mother’s move to New York represents a significant transition in the child’s life. However, the benefits the child will receive by moving to New York with the mother, the mother’s role as the child’s primary caregiver, and the mother and Dr. Teitel’s willingness to support a continuing relationship between the father and the child support the trial court’s judgment allowing the mother to move with the child to New York and denying the father’s petition to modify. Therefore, we cannot say that the trial court erred in entering its judgment denying the father’s petition to modify custody.
Unfortunately, I can’t, because it’s almost totally a function of your local court’s docket. In some counties, you’ll get a hearing within 3-4 weeks. In most, it will be more like six. In some counties, maybe eight weeks.
In February, I notified ex husband, who is ncp, of my intent to move to Santa Barbara, Ca. with my son and husband once school was out. He signed certified letter Feb.23, 2010. Did not file anything with the courts. He did have a lawyer send me a letter threatening to block move but that was all. In July, I received a job offer where I will take home one thousand more dollars every week. This is approx., 50k more than I make here a year. We resigned from our jobs first week in August, boxed up everything, deposit for moving truck, etc. My ex husband takes our child illegally for six days, before I find him enrolled in the school in his district and have police escort me there to get him back. Simultaneously, my attorney is served with emergency hearing papers for Sept. 1st and child is not allowed to leave state until then. My attorney is asking for dismissal, due to fact the move is irreversible at this time and he had over 5 months to file and didn’t. However, Im worried that he wont let us go ahead and move. School starts out there Aug 25th, so now if we get to go he will have to start late. Child is 10. Has a 1/2 brother 2 that lives with us as well. My sister lives out there with her family, son has lived there before, father is a methadone addict on disability, and no ambition in life.Has anger problems, lives with 2 bullriders and one of their girlfriens in a trailer. Why is the judge allowing a hearing this late? My lawyer said according to law my move should be granted? Does this mean we wont get to move? I am offering to work with extended vacations and pay for them, if he will promise not to take son against court orders again and refuse to fly him back.
Case is being tried in Limestone County by same judge that gave me full custody. Do you think the fact that ex violated our custody orders by refusing to give me son back will make a difference? Also, life in Santa Barbara is much better quality then here. Do you think if the judge was born and raised in Alabama he will understand this?
I won’t speak to the issues of Dad’s addiction or his keeping your son, because I don’t think I need to. I think your attorney has filed on the correct grounds, namely that the statute gives you a safe harbor and that you are firmly tucked within it. I’d love for you to post here after the hearing to let us know how the judge ruled.
Thank you for your prompt reply. I will be sure to let you know. Hearing in Sept 1st.
I don’t understand how the judges think it is in the best interest of the children to stay in the same, small town all their lives, especially when the parent needs to move to get a better job, to provide a better life for their child. Living costs money, and we are a mobile society. There are planes. People who live in the same place all their lives, grow up to be very close-minded, non-cultured people. My dad was military. Im glad we got to move around. It made us more well-rounded, cultured, open-minded people. Yes, he was away a big part of our lives, serving our country, but we never doubted his love for us, and we never felt we were deprived because of this.
Do you think the fact that I only told ex in my letter he “has 30 days to contest the move per our divorce decree, or the move is granted”, is enough to argue for dismissal after him waiting until the last minute, over 150 days, or did it have to say “you have 30 days to file something in the court”. It seems like the lawyer who served me a threatening letter, but waited so long to file, would have known the law. What Im nervous about, is why is there an emergency hearing this late? Shouldn’t the judge just have dismissed it at this point and allowed the move? My letter did provide all the other required info. It just didn’t specifically state you must file something in the court. However, he has the same copy of the relocation act attached to his divorce papers as I do. Do you think the judge will put him in jail for taking our son and refusing to give hime back? Im the cp.
I’m beginning to understand now. You sent a notice to Dad, but you didn’t comply with the statute, because the notice was incomplete. In that case, you may very well be reduced to arguing about what is in the child’s best interest.
For the benefit of those who are reading this with fresh eyes, this is a valuable lesson. When you are ready to relocate COMPLY WITH THE STATUTE. Only when you have sent the statutory notice will you have the safe harbor of the statute’s protection.
In the Exhibit “B” relocation act attached to our divorce papers it says, unless you are military, “A warning to the non-relocating person that an objection to the relocation must be made within thirty days of receipt of the notice or the relocation will be permitted”, must be included, so that is exactly what I typed in the letter. I was just reading the case on here where the Appeals court made a footnote stating the Father in the case specifically said you must file in court. My papers did not read like that. If anyone is reading, be safe and include the “you must file in court” part. At the bottom of the Exhibit “B” it does tell the non-relocating party if you do not “commence an action” seeking a temporary permanent order to prevent the change of principal residence within 30 days then the move is authorized. I guess that means file in court. My attorney says ignorance does not excuse you, but he seems to think my letter met all the statutes. Even went up to Madison County Courthouse and asked a judge off the record to read both of our letters and if he could tell me to move, and he said yes. Ex filed in Limestone County where our divorce was done. Apparently, they do not see the move as being authorized, five and a half months later, as I’m not allowed to relocate child until hearing. So we are here, jobless, as we await the trial, with everything still boxed up, and now out a couple thousand extra dollars as well.