Relocation: Giving Mom a Chance to Be Heard

Alabama’s relocation statute makes a rebuttable presumption that taking a child with you when you move is not in the child’s best interest. But the trial court has to give the relocating parent a chance to rebut the presumption.

The case is Holt v. Whitehurst, Case No. 2080131 (Ala. Civ. App. July 17, 2009). Mom and Dad were divorced in 2004. Mom tried to move to Oklahoma two years later and take the parties’ son with her, but the court said no. This case arises because she then married a man in Oklahoma, had a child with him . The child is now living with Mom in Alabama while her new husband, the younger child’s father, stayed in Oklahoma, and now Mom has tried to move again.

When she gave Dad the notice required by the Parent Child Relationship Protection Act, Dad filed a petition to modify, citing her plan to move to Oklahoma as a material change in circumstances. At the subsequent hearing, Dad, as plaintiff, called his witnesses first, Mom and Dad. Then the trial court, apparently on its own motion, questioned the son outside the presence of the parents.

At the end of this questioning, Dad moved for what he called a “directed verdict,” which the appeals court said was actually a judgment on partial findings pursuant to Ala. R. Civ. P. 52(c). Mom objected on the grounds that Mom hadn’t had a chance to present her case. The trial court nevertheless granted Dad’s motion and ruled that if Mom left the state, custody of the son would change to Dad. The trial court said:

Generally, it appears that nothing has changed except that [Mom]’s situation is more pronounced in that she has remarried and her current husband lives and works in Oklahoma. Although the Court is concerned about [Mom]’s new marriage being conducted in a separated manner between the two states, the Court cannot hold [Mom]’s choices against [Dad] and therefore republishes its [earlier] Orders.

Mom timely appealed. The appeals court noted that this was not a case of ore tenus, because the question was one of law, not fact. Rule 52(c), said the appeals court, required that the trial court issue its ruling only after Mom had been fully heard on the issue and the trial court had found against her on that issue. This clearly had not happened, so the trial court’s judgment was due to be reversed.

On the ground in Alabama. Now that Mom has her victory, she goes back to the same judge she has just publicly embarrassed to convince that judge to find in her favor, when the judge is required to presume she is wrong. I don’t envy her or her lawyer.

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