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.

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