Child Support Implies Custody Too

Does an award of child support mean the recipient is awarded custody of the child, even if the court never says so? The Alabama Court of Civil Appeals has answered with a resounding “Uh, yeah, I guess so.” You can read it in M.R.J. v. D.R.B., Case No. 2070487 (Ala. Civ. App. February 27, 2009).

The Montgomery Juvenile Court had earlier established paternity and ordered the father to pay child support. There was no copy of the original order in the record, so the appeals court apparently assumed it was silent on the subject of child custody.

Later the father petitioned the court to find the child dependent, award him custody, require the mother to pay child support and award visitation to the mother. After a hearing, the juvenile court made no finding on dependency but stated the following in the record: “1. That it is in the best interest of the minor child that the parties be and are hereby vested with joint legal custody of the minor child, with physical custody vested in [the father.] 2. That [the mother] is awarded liberal visitation, which shall be established by the Guardian ad Litem and submitted to the Court in writing for inclusion in this file.”

The mother appealed. Her appointed appellate counsel indicated to the court that her appeal had no merit, but the appeals court stated otherwise.

The appeals court noted there were three issues to consider: (1) whether the juvenile court had jurisdiction to determine child custody without a finding of dependency, (2) whether the juvenile court applied the wrong standard in making its custody determination, and (3) whether the juvenile court erred in granting the guardian ad litem the authority to set visitation for the child.

The appeals court dealt easily with the determination of custody without a finding of dependency, noting simply that the juvenile court had earlier obtained jurisdiction over the child in an earlier child support proceeding and therefore retained that jurisdiction until the child reached the age of 21.

The second issue, that of whether the juvenile court applied the wrong standard in making its custody determination, was more challenging because it required the appeals court to make an inference. And it is that inference that’s most interesting from a standpoint of legal precedent.

The appeals court determined that the juvenile court’s original order setting child support for the father to pay to the mother constituted a custody award in favor of the mother. For this finding, the appeals court cited T.B. v. C.D.L, 910 So. 2d 794 (Ala. Civ. App. 2005), in which the appeals court had made just such an inference, stating: “Based upon the award of child support to the mother, we conclude that the mother was also awarded custody of the child at the time the original paternity and child-support judgment was entered.”

The appeals court said that because there had been a previous award of child custody to the mother, the father seeking modification of that custody was required to meet the standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984).

The terms of the final judgment indicate that the juvenile court employed the best-interests-of-the-child standard, which applies to initial-custody determinations and the dispositional phase of dependency proceedings. See B.S.L. v. S.E., 826 So. 2d 890 (Ala. Civ. App. 2002). This court has repeatedly held that a lower court commits reversible error by analyzing a case under the best-interests-of-the-child standard in custody-modification cases in which the McLendon standard applies. See, e.g., S.G. v. P.C., 853 So. 2d 246 (Ala. Civ. App. 2002); and S.D.F. v. A.K., 875 So. 2d 326 (Ala. Civ. App. 2003). See also Rehfeld v. Roth, 885 So. 2d 791, 794-95 (Ala. Civ. App. 2004) (summarizing principles governing when application of erroneous standard to custody matter is and is not reversible error). We therefore must reverse the juvenile court’s judgment and remand this case for the juvenile court to analyze the evidence under the correct standard. See Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994).

On the third issue, that of whether it was appropriate to delegate the setting of visitation to the guardian ad litem, the appeals court said that it would pretermit (choose not to have) any discussion of it because the juvenile court might make it irrelevant on remand.

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