Can’t Leave Visitation Up To the Custodian

This one almost makes you cry. Read the case of D.B. v. Madison County DHR, Case No. 2040919 (Ala. Civ. App. February 24, 2006), and you get an overwhelming sense of regret that the mother in this case ever gave birth to a child. Now that she has, however, what does the state do to make sure the child has a chance at a normal life?

The mother had an IQ of 68. She was diagnosed with “bipolar disorder, attention deficit hyperactivity disorder (“ADHD”), adjustment disorder, and dependent personality disorder,” and the court observed that she had stopped taking her medication. After paying her rent, she had $20 per month to spend, yet she invited a man to live with her after talking to him for 20 minutes. He obliged, and promptly invited his girlfriend to move in too. The mother ackowledged that he was a “moocher” who ate her food and stole things from her, but she wanted him to stay because he and his grilfriend kept the mother company.

There’s plenty more to make you grieve for her child, but we’ll stop there. The Madison County juvenile court conducted a permancy hearing and ordered “Permanent Relative Placement with Transfer of Custody to [a maternal great aunt in Ohio].” As part of its order and in a subsequent response to the mother’s postjudgment motion, the juvenile court allowed the maternal great aunt “to determine if and when visits may be appropriate in Ohio with a two week advance notice by the mother. No phone contact.”

The mother appealed, arguing, among other things, that the juvenile court exceeded the limits of its discretion by leaving the issue of visitation solely to the determination of the maternal great aunt. The appeals court agreed and remanded the case to the juvenile court.

Although this court recognizes that visitation is a matter left to the sound discretion of the trial court, it also recognizes that such discretion is not unfettered. This court has previously held that it is reversible error for a trial court to leave a noncustodial parent’s visitation rights with his or her child to the discretion of the custodial parent or other legal custodian of the child. See, e.g., L.L.M. v. S.F., [Ms. 2040280, July 8, 2005] So. 2d (Ala. Civ. App. 2005) (reversing a juvenile court’s visitation award, which placed the father in control of the mother’s visitation with the child); K.B. v. Cleburne County Dep’t of Human Res., 897 So. 2d 379 (Ala. Civ. App. 2004) (reversing a juvenile court’s visitation award, which essentially left the mother’s right to visitation with the child to the discretion of the child’s aunt and uncle); K.L.U. v. M.C., 809 So. 2d 837 (Ala. Civ. App. 2001) (reversing a trial court’s visitation award, which allowed the mother to determine the father’s visitation schedule); and Bryant v. Bryant, 739 So. 2d 53 (Ala. Civ. App. 1999) (reversing a trial court’s visitation award, which vested the mother with total discretion to determine the father’s visitation rights). Given the authority of L.L.M. v. S.F., supra; K.B. v. Cleburne County Dep’t of Human Res., supra; K.L.U. v. M.C., supra; and Bryant v. Bryant, supra, the juvenile court erred in failing to set forth a specific visitation schedule.

The appeals court also held that the juvenile court erred when it prohibited all telephone contact between the mother and the child.

7 comments

  1. Lee Borden says:

    This is the discussion of the father from the case: “Averette [the DHR social worker] stated that she had attempted to locate relatives in Madison County but had found none. She contacted the child’s alleged father, who stated that he wanted nothing to do with the mother or the child. According to Averette, the alleged father explained that he was still undergoing counseling as a consequence of the sexual encounter between him and the mother, an encounter that he described as a “rape” by the mother when he was 14 or 15 years old and the mother was 26 years old.”

  2. VICKI says:

    What if the child is in DHR custody? Can a juvenile judge give total discretion to DHR about when a parent can visit their child??

  3. Sandra says:

    I relocated to California from Ohio. I have 2 children 7 and 4 yrs of age. I have custody of them but a juvenile magistrate granted their father, who has been convicted in the past of Domestic Violence and admitted he was diagnosed as bipolar and not getting treatment at this time, granted visitation in OHIO for the summer months. Their father has no family and the children have no one to look out for them since I am remaining in California and continuing my treatment for advanced Breast Cancer. Any opinions about that??

  4. sara says:

    Sandra,

    Did you know that magistrates in Ohio are appointed; not elected officials? The are appointed by the Judges that they work for. What Judge in there right (political) mind would appoint such ill equipped and lack-luster people to assist them decide the quality of a family’s life? Yet it happens every day. The only reason I can think of is that the Judges who appoint these “magistrates” are making sure that the appointee is in no way shape or form qualified to give them a run for their money in the next election. WHAT THEY SHOULD REALLY REALIZE IS THAT THE VOTERS WILL START HOLDING THEM ACCOUNTABLE FOR THE DECISIONS OF THESE MAGISTRATES. I’m sorry to hear that you are going through a terrible situation, no only with health matters, but with family matters as well. Contact the media in California. Ohio is one of the worst states for women’s rights. Make some noise! Go on television and bring attention to the terrible job Ohio magistrates are doing and the toll it is taking on the lives of mother’s and their children. I am not a very religious person, but you have my prayers in your struggles.

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