Relocation Statute Presumption

The Alabama Court of Civil Appeals has made its strongest statement yet in defense of, and interpreting, the Alabama Parent Child Relationship Protection Act, commonly known as the relocation statute. Speaking in its Per Curiam (for the Court) opinion in Toler v. Toler, Case No. 2040757 (Ala. Civ. App. June 30, 2006), the appeals court reversed a trial court’s decision to allow the mother of a child to move and take her child with her without rebutting the presumption against relocation built into the statute.

The mother, who lived within easy walking distance of the father south of Birmingham, notified the father on May 25, 2004 that she would be relocating to Dothan. The father filed a petition to modify custody in June, 2004. The father alleged that the that the father and the child had frequent contact with each other (more frequently, in fact, than provided in the visitation schedule), that the child preferred to live with the father, that the father’s mother (who lived near the father) and the son had a good relationship, and that the child was active in school, church, and extracurricular athletics, all of which would be disrupted by the move. The father requested a temporary order enjoining the mother from moving or awarding pendente lite custody to the father.

The trial court received multiple affidavits from the parties (apparently in response to the trial court’s request for them) but did not hold a hearing before denying the father’s motion for temporary relief. The trial court set the case for hearing on the father’s petition to modify for December, 2004. The mother and the son relocated to Headland, AL (near Dothan) together with the mother’s husband.

In December, 2004 trial setting was continued to March, 2005. At the hearing, the father presented his case for changing custody, during which the mother’s husband provided testimony “out of turn” by agreement of the parties. After the father had presented his case, the mother made an oral “motion for directed verdict.” The trial judge met with the attorneys for both parties in chambers, and recessed the proceeding. In April, the trial court issued an order stating that the father’s petition was “due to be denied.” The father appealed after the trial court denied his motion to alter, amend, or vacate.

The appeals court noted that the record contained no mention of any domestic violence. Therefore, said the court, there was a rebuttable presumption from Ala. Code §30-3-169.4 that the move was not in the child’s best interest. “The mother bore the initial burden of proof as to whether a change of principal residence was in the son’s best interests in light of the factors described in § 30-3-169.3(a). Until that burden of proof was met, the burden of proof in the present case did not shift to the father.”

The appeals court said that the mother’s affidavits and the testimony were not enough to meet her burden of overcoming the presumption against relocation. The appeals court mentioned specifically the disruption to the son’s life required by the move, the father’s frequent contact with the son, the sharp curtailment of that contact at the mother’s insistence after the mother’s move, and the father’s self-employed status (which allowed him to be home frequently during the day).

The appeals court said that

by moving to Headland, the mother uprooted the approximately 14-year-old son from his home, his friends, his school, his church, and his other day-to-day activities and contacts. Under the evidence presented, it appears that a change of custody to the father would have left much of the son’s day-to-day life intact and would have been less disruptive to the son than leaving custody with the mother. We also note that it is undisputed that in the spring of 2004, before any discussion occurred about moving to Headland, the son expressed his desire to reside with the father, a desire that the son reiterated at trial. “While not dispositive, the preference of a child with regard to its custody is entitled to much weight.” See Brown v. Brown, 602 So. 2d 429, 431 (Ala. Civ. App. 1992); see also Ex parte Devine, 398 So. 2d 686, 697 (Ala. 1981) (holding that a trial court must consider the preference of a child of sufficient age and maturity).

Concluding that the trial court erred when it dismissed the father’s petition, The appeals court said that the initial burden of proof was on the mother, who needed to rebut the presumption that a change of residence was not in the son’s best interests. It was therefore error for the trial court to dismiss the father’s petition without requiring the mother to meet her burden.

There are four concurring opinions, together making it clear that the court is unsettled on whether the relocation statute “supplants” Ex Parte McLendon, 455 So. 2d 863 (Ala. 1984). The appeals court had stated earlier in Clements v. Clements, 906 So. 2d 952 (Ala. Civ. App. 2005) that Ex Parte McLendon survived the relocation statute. Now at least one justice, Justice Murdock, is questioning that decision.

Lee’s Note: This case deals with a situation in which the mother had sole physical custody. In situations involving joint physical custody, the appeals court has made it clear that Ex Parte McLendon does not apply. More about that tomorrow, when I will write up the case of Drew v. McCullar, Case No. 2040866 (Ala. Civ. App. June 30, 2006).

35 comments

  1. Brian says:

    I am having trouble with this statue trying to understand what all parties it involves. Does this only apply to married couples or does it apply to couples that were never married but had a child? Is there another statue that deals with unmarried couples. If so could someone please advise me where to find it.

  2. James says:

    It is hard to believe that we have a sitting circuit judge, John C. Calhoun, which would so blatantly disregard the law. In this case, Judge John C. Calhoun not only ignored the law but more importantly, ignored what was best for the child, thereby harming the child. Either Judge John C. Calhoun is inept or he has alternative motives for his erroneous ruling. He is probably good friends with Roger H Bedford.

  3. stephanie says:

    Once again Judge Calhoun has messed up a young person’s life without any regard to the feelings and wishes of the child. His decision on a similar case in 1996 ruined my younger sister’s life! I WILL NOT be voting for him on Nov. 7th. Hopefully you will not either! Let’s see what Suzanne Childers can do as Circuit Judge!

  4. Ashley says:

    For years, I thought it was my fault that my father didn’t win custody of me when I asked him to petition for sole custody when I was 12. I’m 24 now and everyday I beat myself up over what I could have done differently to change the judge’s decision. I was mature and articulate enough to speak with the judge directly and express my wishes to live with my father, but I was denied by Judge John C. Calhoun. Instead, he put me on the stand at my mother’s attorney’s insistence, where I was ripped apart by his questions and accusations. The final ruling, which incidentally came on the day of my 13th birthday, stated that the burden of proof was placed on my father to prove that living with my mother was harmful and living with him (my father) would improve my living conditions. Evidence that supported my step-father’s verbal, emotional and even physical abuse was never allowed to be presented. Therefore, Judge Calhoun ruled in favor of my mother. Because of the emotional toll the trial took on me, and being forced to live in an abusive household from the time I was 6 until I was 18, I am now in therapy for clinical depression and acute panic/anxiety disorder. I still have nightmares, even at 24. I truly believe my life would be completely different if another judge had handled our case. Before I get sued, I just want to say that these are my personal experiences, actual facts, and my personal beliefs. P.S. I’m Stephanie’s sister (who posted the comment before me).

  5. denise says:

    I have a question if anyone can help me answer it. I filed for divorce through an attorney on September 8, 2006. I was told by my attorney that I would receive something in the mail within 120 days. I waited the 120 days, emailed my attorney and he said that he has several cases sitting on Judge Calhouns desk, that he has not signed them since being voted out, and that their is nothing that he can do. It is out of his hands. Please help!!!

  6. Anonymous says:

    I filed for divorce in December 2005. It is now January 2007. I kept being told that Judge Calhoun’s docket was backed up. How much longer do I have to wait?

  7. Celeste says:

    Hi Lee,
    This statute has me confused about the parts concerning active duty military members. My husband is active duty Air Force and we will be moving in the next couple of months because of his orders. I have had full custody of my 8 year old daughter her entire life–her biological father and I never married, so obviously my Air Force husband is her step-father. My question is this: do the parts in the statute regarding it not applying to military members apply to us? I am the custodial parent and I am not in the military, but for all intents and purposes I am considered active duty (family member) and so are my children (I have an infant son with my husband). So, my daughter’s father has promised me a lawsuit seeking custody of her if I attempt to move–but I HAVE to move because my husband has been ordered to. Does this tricky statute apply in my situation?? Will I have to face a custody trial and be separated from my husband indefinately because of his commitment to serve our country? I can’t seem to find a definitive answer to this question, I suppose because the statute is still new and perhaps no one has questioned if the custodial parent is the one who has to be active duty military or if being a spouse of active duty military is sufficient.

    Thank you in advance for your help–I have no idea what to make of this mess! You do a great service to others with this amazing website–I can’t tell you how wonderful I think it is!

    -Celeste

  8. Lee Borden says:

    Hi Celeste,

    I’m confused too. By its torms the military exemption applies only if the PARENT is active military service. Your case is the one we’ve all known would emerge, and you may find yourself becoming a test case.

  9. Joe Blackburn says:

    A federal racketeering lawsuit has recently been filed against former judge John C. Calhoun based on conspiracy among himself and a group of lawyers whom he was in a small hunting club with, but whom he allowed to practice in his court. For part of the time the judge was allowed to participate in the hunting club at no cost to himself.

    The lawyers who are involved in the suit are Richard G. Fernambucq, L. Stephen Wright, Charles Gorham and Richard Vincent.

    IF ANYONE HAD A DOMESTIC RELATIONS CASE BEFORE JUDGE JOHN CALHOUN AND THE LAWYER ON THE OTHER SIDE OPPOSING YOU WAS ONE OF THESE FOUR LAWYERS, PLEASE CONTACT ME BY EMAIL AT
    JWBLACKB@SAMFORD.EDU

  10. Dawn says:

    Hi Celeste,

    I can speak from experience. I am also married to an active duty member of the USAF. After having custody of my child for 8 years, I recently lost custody last summer after we received orders that moved us out of the State of Alabama. According to everything I have researched and been told, the exclusion only applies to the active duty member and their children, not the dependent spouses and children that are not biologically the active duty member’s. I had an excellent attorney and an “ironclad” case, (I had been a great mom – I was just wanting to move to keep my family together as we also have custody of his son), but custody was still given to my ex-husband. Our case is currently on appeal. It has been an emotional roller coaster. Say lots of prayers and hope for a judge that is extremely familiar with this law and truly interested in the well being of your child. My prayers are with you.

  11. Joe Blackburn says:

    Is there any way to contact Ashley and Stephanie? I very much need to contact them and find out who their Mother’s lawyer was – a crooked judge and crooked lawyer is probably the reason her father didn’t win custody. Ashley and Stephanie, email jwblackb@samford.edu

  12. Dawn says:

    Does anyone know any good, aggressive family law attorneys in the Montgomery area, preferably well-versed in the Relocation Act and dealing with visitation issues?

  13. claud says:

    Does anyone know a good aggressive lawyer in the St. Clair county area that is has much knowledge and experience dealing with child relocation.PLEASE HELP!Time is of the essence and i’ve only been given 2,3 weeks unofficial notice of the move.

  14. slave of legal system says:

    Hello!
    I finally got defaulted divorce, right before Judge Calhoun retired. A few weeks later I got letter that Judgment was set aside (by Judge Calhoun). Is it even legal to take my divorce away from me and make me married again without hearing? I just got letter in the mail. He filed for divorce, but I don’t seem to be able to get it for a few years already.
    Please help! Is there anything could be done about it?

  15. robbie says:

    Hi,

    I divorced in 1997 and was awarded sole/full custody of my son. My ex did not pursue it in court; domestic abuse was involved. He had standard visitation. I remarried in 2002, and in 2004 we notified my ex we were moving out of state due to a job change. He petitioned for custody with a slate of lies, but reached an agreement out of court when he was about to face the judge. He agreed to what I had originally proposed for a new visitation arrangement, as it was fair and facilitated continuing close contact with the child. But ever since, he has confused entitlement with priviledge, and becomes verbally abusive if I do not fulfill everyone of his “extra” requests. He also has called me recently venting at me as if I were his wife. I recognize this as his controlling nature, as I was married to him for nine years. He has now threatened my husband with physical harm, and subjects my son to his emotional outbursts aimed at us. While we are looking at a restraining order and possibly a protection order in regards to his behaviour and threats to my husband, is there anything I can do to keep him from bashing us to my son and putting him in the middle of decisions regarding extra visitations? (By the way, he has had 7 extra days this year so far- I tell you this to show I do try around my son’s schedule). I need advice. Is this something for family court or the judge who has jurisdiction over my son?

  16. Lee Borden says:

    The restraining order will help, but so will counseling for your son, so he has some coping skills when Dad goes on one of his tirades. My guess is that Dad still wants a relationship with you and has realized that he can get to you with this behavior. The more attention you pay to it, the more you reward him. I know it sounds twisted, but it’s true. Make sure you and your family are safe, and then just give Dad a wide berth.

  17. loving mother says:

    I would like to comment on the laws of childsupport.I have a 3 year old son.My husband however has a child from a previous marrage.I would really like to know that when it comes to child support, my child would be considered too.I love my son very much and don’t understand that if you are trying to do what is in the best interest of a child one matters and one don’t.the bottem line is they are both children!!!

  18. Lisa says:

    I need advice! I am currently married to a Marine Corps officer. We live in Florida and are getting stationed in California. I have a 8 year old son from a previous marriage and a 3 year old daughter with my husband. I gave an notice to relocate to my ex husband. My situation is a little different from the norm b/c my ex husband works off shore one month in Africa and then comes home for a month. Everyone including my lawyer thought this would be a no brainer case due to the circumstances. My ex husband makes quite a bit of money and is home for a month at a time so he would be able to travel to see his son. He is not married but does have a girlfriend. The court just recently denied my request to relocate but i dont understand it b/c he is not even in the country six months out of the year. He told the court that the month that he is gone his girlfriend and mother whom live in another state could come to Florida and take care of our son which would leave my son with no parent or his sister for 6 months out of the year. The is certainly not in the best interest of my son. I have always allowed liberal visitation and he did not even let me have my son on mother’s day b/c it fell on his weekend. I do not see how this ruling could possibly be in the best interest for my son he is not even willing to travel to see his son and i am now being forced to split my family up and had to give up my job so that i can go to California for one month so my daughter can see her dad and go to Florida the next to be with my son. Please help does anyone know of any military cases that could help me!

  19. skip says:

    I am trying to get more information about the Jefferson County Domestic Relations Court and it’s difficulties. Specifically on some of the things Calhoun did and how Judge Ferguson is carrying on the legacy. Please share your comments on any experiences in this system, good or bad.

  20. anonymous says:

    Some of the posts above are perfect examples of why I argued against the relocation law when it was presented to the legislature. The presumption is backwards. The U.S. Supreme Court has ruled in a recent case concerning grandparent visitation that a parent must be presumed to be looking out for the best interest of his/her child. Therefore, a party patitioning for change of custody should bare the burden of proof that the custodial parent is NOT acting in the best interest of the child when they relocate. Placing the burden on the custodial parent should be considered unconstitutional.

    Also, since when is it in the best interest of a child to be taken from his/her family (parent, step-parent, step siblings)because of relocation? If a court originally orders that one parent is best-suited to have primary physical custody, how does relocation change that? It obviously does not. Also, how on earth can a judge decide that a child is harmed by decreased visitation with one parent when he creating the exact same situation with the other parent by changing custody? No matter what decision the judge makes, the child is going to have decreased visitation with one of his/her parents.

  21. anonymous says:

    Comment by anonymous — 1/18/2008 @ 3:00 pm
    Your do not understand. The only person who should bear a burden of proof is one requesting a change of status quo… If there is a change of location (situs) then the burden must always be on the parent making the change of location. If a change of custody exist the burden must be on the parent to show need for a change of custody.

    anonymous — 1/18/2008 @ 3:00 pm you think it is unconstitutional that a custodial parent cannot go anywhere they chose thus infringing on that parents right to travel. I am sure you are not simple enough to assert that parent who voluntarily incurred a responsibility to the child’s welfare and to the noncustodial parent when they consented to procreate has a federal constitutional right to be a dead beat on his/her personal commitment. You know every person has a right to relinquish their rights at anytime.

    If you still hold these beliefs then you are unfit to serve in your representative capacity and should be relieved by your constituents.

  22. J. says:

    Having read some of these comments I have concluded that maybe people who divorce should be precluded from a second marriage if they have children. As an adjunct all parents who divorce should be sterilized before the divorce can be finalized. This would mandate that the existing children would benefit from the endeavors of both parents and relieve the court of hard decisions about diluted support because of future children or marriages of the parents. It would also relieve the Alabama Court of much strain as some people would flee the state to get divorce. Why should a parent have a right to convolute the problem they have created for a child’s care. The marriage commitment should be taken more seriously by the courts and legislators and those who decide to be married. The need to end a marriage should be given more consideration by the system and not granted without proving grounds other than incompatibility if children are present.
    This was the case in the past but modern legislation and courts have created monumental problems by allowing whimsical dissolutions. Let the hard fact stand that an enforced commitment and contract protects the children. Let the Legislators truthfully protect the welfare of innocent children not the infidel parents. Hedonism and self interest at any level is not and should not be a protected right for a parent as it currently exist in our world. A focus on nurture, duty and responsibility of both parents should be the protection provided to the children. Parents not the State do the most effective job of child care. Again, Incompatibility should not be allowed for dissolving a marriage with minor children. Mandated joint custody is a proper step in this direction. I pray that my legislative representatives can repair the broken ideas of the past legislators, lawyers and judges on these matters. All the while, I know the chances are small because there is more money for the leaches that make chaos in the system.

  23. B Caudle says:

    In regards to the relocation act what form of response is required when a 30 day notice is given to the ex-spouse?

  24. Nate says:

    IF YOU WANT TO GET CUSTODY OF YOUR CHILDREN IN CHARLOTTE COUNTY FL. ALL YOU HAVE TO DO IS COMMIT A CRIME THAT WILL LEAVE YOUR EX HOMELESS, NOT ONLY WILL YOU GET AWAY WITH THE CRIME BUT YOU’LL HAVE AN EASY SHOT AT TAKING CUSTODY. PLUS YOU DON’T HAVE TO PAY A NICKEL OF CHILD SUPPORT TO THE OTHER PARENT WHILE YOUR TAKING THIER CUSTODY AWAY. JUST LOOK AT CASE 04-97ca. IN THE CHARLOTTE COUNTY FLORIDA RECORDS.

    I am a single father of 3 small children that had our home destroyed in a hurricane only one month after the divorce Shortly after the hurricane it was found my former wife stole the insurance check leaving the children and I homeless and penniless. I’ve been fighting for relief by asking to be allowed to relocate back to our home state where I have a good job offer and the help of both materenal and patrenal grandparents. I have been renting a home as well as trying to keep the lot where my home once stood out of foreclosure. I recieve no child support and can no longer afford to continue living in the state of Florida due to the finanacial repecussions my former wife has placed me in. I have been pleading for relief for 4 years and the courts solution is to force me to pay for a $5000, year long custody evaluation before they will rule on my motion to relocate. I obviously don’t have the money to pay for this as I don’t even have the money to continue living in the state of Florida which is the entire reason I sought relocation more importantly I’m not asking to modify custody I’m asking for relief from a crime. Why should I be forced to risk losing my custody to my former wife because I’m asking to relocate because I can no longer afford to clean up the mess from a crime she committed. I’m not looking to take anything away from her, as she only takes visitation of the children 24 days a year and my proposed visitation schedule offers to double that. The problem is all to clear in my case, and that is the fact I’m a man instead of a woman, as hundreds of women were readily granted relocation in Charlotte County after the hurricane and none of these women had thier ex husbands steal thier insurance check leaving them and the children homeless and penniless. I’m in a desperate situation and will be forced to have to give up by giving my former wife the children and leaving because I can’t afford to stay. Charlotte county makes clear that children that are cared for by a man should be forced to suffer more than those cared for by a woman.

  25. No Easy Answer says:

    Another Florida tail..Little did I realize that a divorce decree gives an ex-husband authority to choose where I can live (maybe I should have asked him if I could remarry). The schools in Marion County are horrible and the superintendent’s idea to deal with the budget cuts is to cut federally mandated programs and ignore the class-size law and pay fines!!!!!The educational standards here are already bad enough. My husband and I decided to move up north, he has family there with whom my children are familiar (only 1 with the ex) I have an order allowing me to move in regards to my older 2 children as their father is not involved and agreed to me moving and having full/sole-custody. The same judge who signed the other order made it point blank that she will only consider the (youngest child’s) father’s contact with the child as a factor…….so much for the Florida Statutes or best interest and I might lose custody of my daughter. Just for more background, in the initial divorce the judge ( a different one) ruled that my daughter was better off with me or at my house on the nights I worked than with my ex. Since the divorce my ex has gotten a DUI conviction, has ignored a child support delinquency order, failed to pay a bill on a joint credit card he incurred after we were separated, has not supplied the court ordered insurance or paid half the unpaid medical bills and I have a permanent Injucntion against him. Not only are the schools better as demonstrated by standardized test scores, the extra activities of the area are much more expansive than here, my husband’s family are well situated to be beneficial role models ( MSW’s X 4) vs my ex’s Incarcerations himself and 4 siblings as well as an alleged (although a gram scale isn’t used for metering mail) drug dealing son-in-law. Further, my husband is due to start a job 7-28 and I was told I could not transfer to a promotion. My only option pending completion of the court process which I accept will include the appellate and probably higher courts is a double edged sword. Send my 2 children who are able to move with my husband (their step-father) so they can go to school up north and take advantage of the better quality education thus depriving them of day to day contact with myself and their sister as I fight in court or subject them to this horrible educational system in a school rampant with gangs and drugs????

  26. MARY says:

    I HAVE A DAUGHTER AND SHE IS 18 SHE WILL BE GOING TO COLLEGE IN THE STATE MY MOTHER LIVES.
    I WANTED TO LIVE WITH MY MOM DUE TO HER HEALTH ISSUES AND HELP HER.
    I DID NOT GO TO COURT BACK THEN THINKING THAT I WOULD PROBABLY LOOSE THE RELOCATION CASE WHEN MY MOM FIRST GOT SICK AND LEFT US TO MOVE AWAY TO HELP HER SELF IN HOPES SHE WOULD LIVE LONGER.
    I HAVE PHYSICAL CUSTODY, BUT I KNOW RELOCATION IS HARD TO HAVE GRANTED.
    NOW MY SON IS 14 AND HAS THE SAME FATHER AS MY DAUGHTER WHO IS LEAVING.MY SON AND I WANT TO BE WITH MY DAUGHTER(HIS SISTER) AND MY MOTHER( HIS GRANDMOTHER) AND THIS IS IN MY EMOTIONAL BEST INTEREST.
    THIS IS ALONG TIME WAITING TO SAY THE LEAST.
    WHAT ARE MY CHANCES IN THE RELOCATION?I HAVE RAISED ONE ALL THE WAY AND MY SON HAS LIVED WITH ME 14 YEARS AND IS WELL TAKEN CARE OF AND HE IS FOR THE MOVE. FLYING COST IS NOT A PROBLEM.

  27. ARMY WIFE says:

    I am a proud military wife and my husband is serving again in Iraq. My issue is that Alabama has a law that says a parent can’t move more than 60 miles from the non-relocating parent. I am now married to a miltary man that has served 20 years and am having to fight to keep my family together because of my ex husband that doesn’t pay child support or provide medical insurance for my 9 year old son, saying that I can’t move anywhere. Can someone please help?????? It seems like the harder I try to be heard, the more I am pushed to the side.

  28. JW says:

    My current husband and I moved to Georgia 8 months ago with my 13 year old son, my 8 year old son and 5 year old daughter. In around the 6th month, my oldest son began experiencing depression and was very emotional and started doing poorly overall in the GA school system. Since my ex-husband was in the middle of a custody battle to obtain custody of his younger son, we decided it best he live with my mother in Alabama to finish out the school year. I signed a temporary guardianship paper to allow him to enroll in school there. I am paying child support to my mother (no paper was ever formally filed with the court) and we are moving to Cherokee County, GA so that in November (when I plan on getting my son back), he will be able to start fresh in a new district. My mother and I do not get along that well and she has always wanted him to live with her since birth. He is very spoiled when he is there, which is a main reason why I want him back here with me.

    The temporary guardianship paper expired in July of 2008. Custody has and is with me through the court system. Any problem with me just going to get my child and bringing him back here with me? Do you think my mother may have a chance to obtain full custody of him because I allowed her to temporarily take him because he was very depressed and upset and it seemed like an appropriate thing to do at the time?

    Thanks.

    JW

  29. trae says:

    the court denied my exes objection to keep me from moving out of state from alabama to ohio does this mean i am free to move now?

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