Anybody Got Any Facts To Back This Up?

Alabama family law judges know they have to base their rulings on some kind of factual evidence. This case clarifies how the process works.

We’re talking about Rose v. Jackson, Case No. 2071057 (Ala. Civ. App. October 16, 2009). Mom and Dad divorced in 2007. Mom got custody of the child, Dad visitation and the duty to pay child support. Four months later Dad filed to change custody, arguing that the court should find Mom in contempt for failing to comply with visitation, for taking the child out of a preschool program, and for not paying the car payment for the loan in the husband’s name the decree ordered her to pay.

After a hearing, the Montgomery County Circuit Court changed custody to Dad and awarded Mom visitation. Mom appealed. The appeals court reversed.

The appeals court looked at each of Dad’s three arguments in order. First, Mom’s failure to comply with the visitation schedule. The appeals court cited Kelly v. Akers, 793 So. 2d 821, 826-27 (Ala. Civ. App. 2001) and Vick v. Vick, 688 So. 2d 852 (Ala. Civ. App. 1997) for the proposition that failure to comply with visitation is not sufficient alone to justify a change of custody.

With reference to Mom’s removing the child from preschool, the appeals court cited evidence that Dad had himself had helped to prepare the paperwork for the preschool the child did attend, and it also pointed out that the child had been admitted into the magnet school kindergarten; “none of these facts indicates that the child’s welfare had been affected in any manner.” Rose at 3-4.

Finally, relating to Mom’s failure to pay the car loan, the appeals court said this: “The father did not indicate that the mother’s default on the lease-purchase agreement had in any way affected the child’s welfare; in fact, he testified that the mother had been able to afford to buy a used vehicle after the leased vehicle had been repossessed.” Rose at 4.

So the appeals court, having examined the three key justifications for a change in custody, ruled that the first dealing with the visitation schedule was insufficient alone and that all three were unaccompanied by any evidence that they had affected the child at all, let alone risen to the high standard of the McLendon rule (that the change in custody must materially promote the child’s best interest and that the benefits of the requested change must more than offset the inherently disruptive effect caused by uprooting the child):

The father failed to establish how any of those actions by the mother had affected the child’s welfare. Moreover, the father did not show that material changes affecting the child’s welfare had occurred since the original award of custody, nor did he demonstrate how the positive good brought about by a change in custody would more than offset the disruptive effect of uprooting the child. Thus, none of the reasons cited by the trial court are sufficient to meet the standard set forth in Ex parte McLendon to support a modification of custody in this case. Rose at 6.


  1. A Dad says:

    These are the same factors the Civil Appeals used to reverse the Davis vs Blackstock case (06/29/2007) where as the child was well-adjusted and thriving, as such, there were no material change of circumstance.

    The Ala Supreme Court in Blackstock reversed civil appeals (09/11/2009) saying a ‘material change of circumstances’ didn’t have to happen, but rather what is in the ‘child’s best interest.’

    Alabama case law seems clear, first, a material change affecting the child’s welfare is required to consider a modification. Such was NOT proven in the Blackstock case, just as it was not proven in the Rose case.

    It is poor thinking on any judges part to think failure to comply with visitation is not sufficient to change custody.

    The significant fundamental problem with the Alabama Courts: they DID NOT value the parent-child relationship. This in itself is not in any child’s best interest. And the Courts are really looking out for Alabama Children? Really!

  2. mary hamby says:

    Right now, our daughter is fighting to have a modification set aside. Her ex husband was awarded custody while she was ill with a brain aneurism, and he maintained that she used drugs in front of the children, and was violent. She can prove they are lies, and yet, he was awarded custody? How does this happen? Alabama Courts never even notified her. Travesty.

  3. george says:

    I am a father of two age 7 and 3. It appears that the judge favored custody and complete control to the ex-wife simply because she is the mother. I am available 24/7, my kids love being with me and my daughter mentioned to the judge “I want to see my dad everyday” but it made very little difference as I can tell.

    What would be the best way to draft a motion to amend judgement that would give me the springboard to an appeal or more so, give me what I desire? I get the kids 1st and 3rd weekends, one month during the summer, spring break, a week during Christmas, and every other birthday for 12 hours. I want to spend time with them while the mother is at work and not allow them to be around their grandma too long due to second hand smoke. Just recently I email the EX asking if it is OK for me to take son to zoo while she was at work. EX didn’t even respond. I also pay $1,100 child support in which I don’t mind but when I we were legal separated I paid $200 a month and now that my job was abolished and I am unemployed I pay over $1,000. Go figure? If they stay with me most of time and I take kid to school and pick kid up – the expense for both of would be less. She now allows kid to stay in aftercare which is an additional expense (kid in private school).

    I am clean cut, no arrest record, a youth volunteer, and unemployed with income living with an assisting an elderly parent.

    Ex wife works 8a to 6p M-F will not agree for me to see 3 yr. old son that stays with mother-in-law. She is big on calling 911. Tried 2 times to get me with abuse and filed one protection order prior to the divorce. The officers that came to our house never arrested me, they could see thru the 911 calls. The protection order was dropped by the wife after I ascertain an attorney.

    The divorce was final just a few days ago. Time is of the essence! I want more time with my kids because I love them and it is best for the kids to spend quality time with their dad (age 56).

    I need copies of how can write up this motion to amend judgment. I owe my attorney thousands and need to do this pro se. (without an attorney).

    These attorney’s hearts are not in it. They are making money and lots of it.

    Are there any support groups for men in the Alabama area? It isn’t fair to take control of kids totally away from the Dad. Why are men discriminated against? All they want from me is money. That’s the message the judge has sent. Complete control of the kids lives was given to the EX. I do not have any input in what school they attend, whether they play sports or not, whether they learn to play an instrument or not. This is frustrating and unfair.

    I must file a motion to alter or amend judgment ASAP.

    God bless!

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