Relocation Statute Presumption with Joint Custody

Yesterday we reviewed the case of Toler v. Toler. In that case the Alabama Court of Civil Appeals balanced the McLendon rule of repose against the no-move presumption built into the relocation statute. The mother in Toler had sole physical custody. Today we deal with the flip side of that analysis, a case in which the relocating mother had joint physical custody with the father. The case is Drew v. McCullar, Case No. 2040866 (Ala. Civ. App. June 30, 2006).

The father and mother were divorced in Mobile in 2000. The agreement incorporated in their divorce decree provided that

the parties shall share joint legal and joint physical custody of the minor child, and the child’s primary residence shall be with the Defendant-Mother, subject to all rights of visitation on the part of the Plaintiff-Father ….

The agreement had other provisions that required notice from each parent to the other for any travel outside Mobile, as well as provisions governing any relocation. After the divorce, the parents lived close to each other, and both participated actively in the child’s life.

The mother remarried in 2001 to a tennis pro, and the mother and her new husband had a child the following year. The year after that, the country club where the husband worked was sold to new owners, the husband’s income decreased significantly, and the husband accepted a new job at a country club in Birmingham.

The opinion doesn’t say whether the mother notified the father of the move, but the father filed a petition to modify on May 13, 2004, alleging that the mother planned to move to Birmingham and that the relocation would not be in the child’s best interests. The father requested the court to issue a temporary restraining order prohibiting the mother from relocating the child.

The trial court issued on June 15, 2004 a temporary order restraining the mother from changing the child’s residence from Baldwin County. On August 9, 2004, the trial court held a hearing but apparently did not take any testimony. On October 6, 2004, the trial court entered a temporary order that the child remain in Baldwin County pending final hearing.

The mother moved to Birmingham a few weeks later, and the child lived with the father. The child was living with the father at the time of the trial in May, 2005.

After an ore tenus hearing, the trial issued an order in which it determined that the standard of Ex parte McLendon, 455 So. 2d 863 (Ala. 1984) applied and that the father had presented insufficient evidence to overcome the McLendon presumption against changing custody. The trial court denied the father’s petition to chinge custody and modified the father’s midweek visitation with the child. The father appealed.

The appeals court said that the central question in the case was whether the trial court was correct to apply the McLendon standard or whether it should have looked simply to the best interests of the child as specified in Ex parte Couch, 521 So. 2d 987 (Ala. 1988). The appeals court concluded that, because the divorce judgment awarded joint physical custody, the court should have applied the best-interests standard. The appeals court said the trial court erred when it required the father to satisfy the more stringent McLendon standard. The appeals court reversed the trial court and remanded the case for the trial court to apply the proper standard.

11 comments

  1. Michael says:

    I have exactly the same scenario with my daughter. My ex wife, who I divorced in Baldwin County, is trying to relocate my 5 year old daughter to Orlando. We have joint custody, and I see my daughter every Wed at 5pm till Thur at 9am and every other weekend from Fri at 5pm till Sunday at 6pm. Do I need to file a petition to keep my exwife from relocating my daughter away from her brother, father, grandparents, and other family.

  2. Lee Borden says:

    Talk to your lawyer NOW about filing a petition to modify on the grounds of a material change in circumstances. Based on current case law, you may have a strong claim.

  3. t Easterling says:

    I have given a thirty day notice and it is over 30 days with no response,

    will I receive notice or does it go directly to the court system if he objects?

  4. jl says:

    I just want to say that Alabama is absolutely ludicris in this, My daughter who is now 23 years of age and has given me a beautiful 3 year old granddaughter shows me everyday that doing what is in the best interest of not only the child but the parents who need to be ADULTS is what is lacking….
    I was married for 11 years and divorced my daughters father, I later got married and my new husband wanted to move to Alabama, my daughters father and I discussed the pros and cons and came up with an amicable solution of her finishing out the year with him (she was 15 1/5) and then coming to live in Alabama with me. We alternated Holidays and spring break was his (its just fair folks) we also decided whereever she lived the other party paid for her transportation to the opposite location. It may surprise some people but we also shared complete residence she lived with me two weeks and him two weeks we lived only miles from each other. Now i know this is not able to be done for all but use what you can to see clear for all involved her father and I get along and it has made her more secure in knowing BOTH PARENTS ADORE AND LOVE HER DEVOTEDLY..

  5. trying to put the children first says:

    Thoughts on chances of changing visitation schedule when parents have joint custody, mother is custodial parent, Dad lives in Birmingham and mother lives 300 miles away in SC? Divorce agreement completed by Jefferson Co, AL. Current visitation schedule is that Dad gets kids every 1st, 3rd, and 5th weekends along with a week at Christmas, 4 wks in summer, and every other holiday. The kids end up driving for over 5hrs for each trip both to and from Dad’s (10hrs per weekend). He doesn’t allow any change of schedule to allow the kids to participate in social, school, scouts, sports, etc. He recently made me drive all the way to Birmingham to pick up the kids because traffic (3 wrecks for which I am obtaining DOT reports) b/c I had informed him on the incidents and he told me I had to get them from Bham since I would be late. This put the kids in the car for an addtl 4hrs, forced us to stay the night in Bham, and forced me to miss work the following Monday. Since it is so difficult to work with him and we are so far apart, are there any chances of decreasing the 1st, 3rd, and 5th weekends to just once a month, while keeping holiday schedule the same?

  6. Lee Borden says:

    If I were you I would blow the dust off your decree and follow it. The usual terms would call for the NCP to do all the transporting. That alone tends to have an inhibiting effect on frequent visitation.

    My guess is that you’ll have better luck with that strategy than with asking the judge to decrease visitation. If the decree provides for you to do the transporting, you must have agreed to this at some point, because that’s not standard.

  7. trying to put the children first says:

    yes, i did agree to meeting in GA – he drives 120 miles and i drive 180 miles.

    we’ve been doing this since jan 08. overtime, i’ve seen the large issues it causes for the children (missing big events b/c Dad won’t switch weekends, the recent incident of his girlfriend driving them all the way back to bham – putting kids in car for 4 extra hours, etc) – i feel it will only cause them more harm as they get older. i had no idea, when i entered into the agreement, that he would care so little about any effects on the children. Is there a way to protect them from such harm?

    Also, since our agreement does not specify a time frame for which we must wait, does that mean that we must wait until the other party arrives? Or, is there an “underlying” rule that applies…and in cases such as these where we meet so often with so much distance between us?

    I am going to start adhering strictly to the agreement, after this past weekend’s occurences. It states we are to meet at 6pm on the friday evenings, but I had agreed to meet at 7 because he stated he couldn’t make it by 6 due to work. I am going to notify him that i am no longer agreeing to that b/c i’ve found it to be in the kids’ best interest I stick to the agreement completely. Is this the best approach? I have consistently found that what I may feel to be in the best interest of the children makes no difference; following the agreement is key. as in this case, i don’t feel taking them at 6 as the agreement says and waiting until 7 when he arrives is best for the kids (being in car for hr extra).

    It is also in our agreement to communicate via mail, except for emergencies. However, the kids have recently sent him mail and it was returned. If i send him notification as in the above paragraph and it is returned, am i required to do anything further?

  8. Lee Borden says:

    I’m happy to provide information, but I can’t give you legal advice, and what you’re asking for is legal advice. It’s time to buy an hour’s time with a good family lawyer and formulate a strategy.

  9. Mike says:

    I have a similar issue. We don’t meet as much, but I have a problem with her being on time. We are about 320 miles apart. Our visitation agreement does not say how long I must wait. Is there any certain time frame if it does not say specifically in our agreement? Could I file something since she is always late?

  10. Lee Borden says:

    Ask your lawyer how your judge feels about this. In the court where I practiced regularly for several years, there was a “15 minutes and go” convention, but you should not rely on that.

    You can file an enforcement petition, called a Petition for Rule Nisi. I’ll leave it to you to decide whether it’s worth it for this.

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