We have our first appellate case now interpreting the Alabama Parent Child Relationship Protection Act, and it permits the relocation to occur. In Clements v. Clements, Case No. 2030768 (Ala. Civ. App. February 11, 2005), the Appeals Court affirmed the judgment of the trial court in Autauga County. The trial court’s opinion hadn’t expressly said so, but the Appeals Court deemed the trial court to have found that the relocating mother had succeeded in overcoming the presumption against relocation. This therefore shifted the burden to the non-relocating father, who sought a transfer of custody from the mother to himself.
The court ruled that any change of custody continued to be governed by the McLendon standard and that it would not disturb the finding of the lower court on ore tenus evidence that the father had not met his burden.
The father and the mother both presented evidence regarding their relationship with the child and their fitness as parents. It is clear that both parties love the child and want the trial court to act in the child’s best interest. There was ample evidence presented to the trial court from which it could have found that it was in the child’s best interest to move with the mother to New York. During the time that the child has been in the mother’s custody, the mother has seen to the child’s medical needs and educational needs. There is little evidence that the mother’s devotion to the child’s needs will change after moving to New York. Also, the mother has participated in counseling, along with Dr. Teitel (the mother’s new husband) and the child, to encourage a smooth transition for the child in New York.
The evidence supports the trial court’s determination that the child’s best interest and welfare will not be materially promoted by transferring custody of the child to the father. Ex parte McLendon, supra. There is no doubt that the mother’s move to New York represents a significant transition in the child’s life. However, the benefits the child will receive by moving to New York with the mother, the mother’s role as the child’s primary caregiver, and the mother and Dr. Teitel’s willingness to support a continuing relationship between the father and the child support the trial court’s judgment allowing the mother to move with the child to New York and denying the father’s petition to modify. Therefore, we cannot say that the trial court erred in entering its judgment denying the father’s petition to modify custody.
My question is did the parents have joint custody
I WOULD LIKE TO KNOW IF THEY HAD JOINT CUSTODY AND HOW THINGS COULD BE CHANGED TO PREVENT THIS MOVE. I THINK IT IS NOT ADVISABLE TO MOVE A CHILD FROM A CARING PARENT THAT IS WILLING TO COMPLETELY TAKE THIS CHILD AND NOT HAVE HIS LIFE INTERRUPTED.
I think that after a divorce most single moms have to deal with ex, and their bitterness. If this woman has found someone that loves this child and they are now married and can offer this child a better life, then let the child go with the mother. I don’t forsee her moving to NY and never letting the child visit the father. I think that children should move to show them other parts of the country and also open their eyes to other cultures and make them more diverse. The mother has showed no signs of vindictivesness…..so I say HAVE A GOOD LIFE and MANY BLESSINGS to her and her new family!
Joint legal custody. Mom had primary physical custody.
Who was the wife’s attorney in the clements vs. clements case?
As long as the mother and step-father continue to provide a stable and loving home, I dont see a problem as long as both parents act in a mature fashion as far as visitation and time spent with the father if he can’t move, also. The child’s best interest have to be at heart – not the adults.
Another case of Judges overriding the will of the people and MAKING law, instead of interpreting it. The father’s rights to be a prent have been ignored once again. What a farce!
Good for Moms everywhere who actually take CARE of their children. Im in the battle of doing the same, moving out of state, although my ex has never ONCE payed CS in 3 years, and I have unsurmountable evidence of the childrens benefit in the move. I agree that for dads who have in fact been involved (emotionally, physically, AND financially) you do have a right to stand up for yourself. However, the dads who do NONE of the above, dont have 2 feet to stand on when it comes to them getting ‘scared’ of losing custody, then all of a sudden filing a motion for the mother to NOT move. The support should have been given when it was due, not when you fear abandonment. Its only hurting the children.
What about the child? Shouldn’t they have a say?
I am going throu the same as Shannon. I have not recieved any CS in 5 years and he has not made ANY attempts to see his children in over 2 years. Why should he be able to tell me where I can move the children he cares so little about? The reason we divorced is because of DV.
Beware!! I just lost custody of my children because I moved only 30 miles outside of the 60 mile radius where this would not have been an issue. I also remarried and wanted to move to be with him. We had joint custody but because I ALLOWED my ex extra time with the children over the past couple of years which made custody almost 50/50, we had to follow the “best interest” procedure. He never had alot to do with them before the divorce, but now has primary custody and I am limited to only standard visitation. I have been “raped” on child support and time with my children, who are my life. I have had to obtain an extra job just to pay child support. I followed each and every point of the new act and it was taken completely out of context. I was told that I was to “wait for permission from the court” before I moved, yet one of the main points in the act says to submit address, phone number, schools to be attended, etc., and that’s only the beginning of this horrible saga. So, please be careful.
This question is for “Mommy” Do you live in AL? I’m interested in more details from your case. Where do you think everything went wrong? Any suggestions if you had to do it over again? I just don’t want the same thing to happen to me!!
I do live in AL. My personal opinion is that things went wrong when I allowed my ex the extra time and although it was not “official time” with the court, it was still counted and made our custody “true joint”. My moving disallowed the extra time. I did this for the children’s sake, not my ex’s. Courts prefer to give more time, not take it away, although they took it away from me. I really don’t know what, if anything, I would have done differently because I know I did everything correctly per the statute. Get a really tough lawyer who can argue your case well and if possible, an experienced, seasoned Judge. Document everything and take nothing for granted. Please post how everything is going. Good Luck.
Mommy…I really need to talk to you off this blog, can you make an attempt to contact me…the same happen to me and I am going through the court of civil appeals…..or give your email address to contact you asap
TJ – Just checked the blog, sorry it took so long to get back to you. Sounds like I would be interested in hearing what you have to say, but as my ex has pulled out all the tricks in the past, I prefer not to post my email or phone. I’m sorry, I don’t mean any ill will whatsoever, just very “snakebit” at this point. Will you please provide me with some way of getting in touch with you? I would like very much to speak with you as well.
Mommy email me @ tlf1977@hotmail.com
I have been separated for nearly 3 years. Divorced for 6 mths. It took forever just to get through the court system. There was a history of abuse committed against me and my oldest daughter (age 7 at separation). My youngest daughter had to go on supervised visits (Sat.12-4 and Sun. 12-4) for about 2 years. She is now 8. We finally agreed to me having Physical and Legal Custody and him standard visitation. Since her overnight weekend visitations began he has denied all phone contact when he has her; and he has been perpetually behind in support just under the limit for the DA to prosecute. He was picked up once when he let it slip past 7 weeks behind. A few days after he filed to have me arrested for harrassing communication, providing the phone log where I had repeatedly called on the weekends he had her just hoping she would be near the phone when it rang. That court date is in Feb. He reported made a false report to DHR that I refused to inform him of her asthma condition (which she actually had before he left our house); that I sent her to him with lice (which he found on the last of a 6 day visit) ; and a few other false claims. Now I am being studied(which I guess is OK, except that as a teacher who is up for tenure in a small town, it will circulate like wildfire. It has been one thing after another in the was of torture since she started going on overnight visits. I am so exhausted!!!!!!!!! I am only getting $50.00 a week and having a very hard time financially with only a BS teaching. I am returning for my MA so that I can make a little more and be able to provide better since support is so minimul and sporadic. To finish the degree I want I will need to move out of state so that I can work on it part time and not have to quit work to finish. The money will be some better because Alabama doesn’t pay teachers much in comparrison to other states, but the real benefit will not come till I finish my degree. What Kind of chance does he have of stopping me? What is the best avenue for me? Unfortunately, the small county system that had jurisdiction over our case is operated by bubba, bubba joe, bubba frank, and bubba jr. — all from the same bubba law firm or family. My ex’s lawyer just happens to be a partner. What’s a mom to do. I really just want some peace.
I was awarded custody of my children and my ex has supervised visitation. I was allowed to move out of state with the children by the court after the divorce. It has been one year since the divorce / relocation. I have just remarried and have notified my ex of my intended move in exact accordance with the Alabama Relocation Statute. My question is; does it even apply in my case? I am already out of state. The issue is not covered in the statute as far as I can tell.
Comments please…………….
I’ve been reading all of these entries and am getting more and more nervous. My ex and I were never married, and he’s not even on the birth certificate. We split up two years ago. This past Fall I hired a lawyer and was able to get child support. What is bothering me is that one mother’s comment said the extra time she allowed her ex to have with the kids ended up in the judge viewing it as true joint custody. Currently, I allow my ex to see the kids as much as he wants, which ends up being about half the time. During his half time, though, he spends much of it as his mother’s house where the food and other necessities are provided, so he’s not spending “extra” money in addition to the child support. My children and I are moving out of the country this fall for one year. The child support/custody papers had this written into them and he signed. Recently he has been threatening to obtain joint custody, says he’s been reading about the new alabama laws and that if I take the kids out of country he’ll be able to get them. What chance does he have of doing this? Should I lay down the ground rules that we need to follow the standard visitation the judge ordered of every other weekend, etc? Perhaps not so coincidentally his interest in seeing the children more and more seemed to happen around the time he started talking about reading the laws. I sure hope he’s not planning something. Any advice?
I have joint custody of my children with the mother having primary custody. She is planning to move my children away to another state. My children were born and raised here and we have a very close relationship. All of their family from both sides live here and if they move there is not emergency contact. This is driving me crazy, I see my children on a regular basis and attend all school functions and ball games. If this move is permitted I will see them 4 days a month. Any advice?
I have joint legal custody of my child w/my ex & w/him having primary residency. We were having our child stay w/ each of us fairly regularly for a week at a time for some continuity. Then out of nowhere, ex gets himself in a financial bind and moves himself and our child to a FEMA disaster area to make money for his business. At the time, I had no way to fight him financially. He told me that this was only temporary but it lasted for 8 mths all the while with me begging for an answer. He did give me notice of this move and I begged him to leave our child here since this is where he was born and he could continue school. He chose to leave. Now he is getting married and wants to move our child again. He has painted this move to be the greatest thing ever for our child. I have petitioned him to stay this time. I live in Alabama. I never should have lost my child to begin with & I did so due to poor representation. Can anyone tell me if they see potential for a judge to see my side?
You’ve fallen into a familiar trap, in which one of the parents agrees for a child to live with the other parent “temporarily,” and temporary becomes permanent. My guess is that at this point you will face an uphill struggle, convincing a judge why a change would be in your son’s best interest. One bright spot: you need NOT satisfy the McLendon rule, because you and Dad have joint custody.
I have a question…at the time my custody/visitation order was made, it was agreed at the time that the NCP knew I was moving out of state and granted it. We have joint legal and I have full physical. He gets the standard visitations for being more than 100 miles away.
I just purchased a new home only a few miles from where I am now. This will not effect anything with his visitation. He lives in AL, I live in PA.
Would I still have to give the 45 day advance notice with all these details if he already lives out of my state, and the vistiation is already in place for the more than 100 miles away thing?
I have not cloed on the house, will in 6 days, but want to move asap due to school starts soon and I dont want to move her from one school to another.(kindergarden)
What I searched makes it seem as if I lived in AL for the vistations then want to up and move out of state. I was already in the process of moving and in fact, he helped me move to PA. We agreed on it all, and no judge decided, just signed our agreement as the order.
Any advice is appreciated.
(side note, I tried to get the order moved to my state, but only enforcement is here in PA, but order is still an AL order, even though the children reside with me for over 16 months now, with his agreement and helping us move, so not sure what to do)
Mommy2
As I read the statute, you must still give the notice, and he still has the right to object and call for a hearing. You are at a disadvantage because you will have failed to comply with the time limit on the move. Your hope would be, however, that any judge who hears this would decide that a move of this nature is de minimus (doesn’t amount to much) and would permit the move to occur.
I am in a situation where I followed the instructions for relocating. My ex husband’s time to protest is up. Now I am moving in a few days to Missouri. Is their anything else he can do to stop me from moving?
As far as I know, no. Go to the statute at https://divorceinfo.com/alrelocationstatute.htm and read §30-3-169.
I have two questions. The first regards the 60 mile limit. How is the 60 miles measured? I’m considering a move to another part of the state. There is a good school system in a town, and the elementary school is 61.4 miles from my ex’s house, exit to exit on the interstate. So, I’m wondering if the 60 miles is map miles, in which case I could find a home within the 60 miles and still keep my kids in a good school, or if it is driving miles.
My second question is this: My ex knows my intent to move and is against it. I’m afraid he would try to move in the opposite direction in an attempt to prevent me from making this move. If he moved prior to me, would the 60 mile limit then apply to his new address?
Answer to first question: the 60 miles is measured from residence to residence. Go to https://divorceinfo.com/alrelocationstatute.htm and look for § 30-3-162.
Answer to second question: Yes, he probably could do that. If his move doesn’t take him more than 60 miles away from you, you wouldn’t have grounds to object, but it would make it harder for him to complain about your moving farther away if he was the first one to move farther away.
I was divorced in Georgia, I moved to SC and my ex moved to Alabama with our child. Ex has been living with boyfriend ever since. I have standard visitation and have paid support regularly without missing a beat. Because of the distance involved I have been allowed by my ex to get him for one week every month or two and on some holidays, however he has recently started school and my visitations are limited to a couple of times a year. I want to move closer but I can not afford to chase ex all over the country. Ex’s job requires her to move very few years. What can I do???
Sorry, no silver bullet. Lots of phone calls, set up teleconference capability, make the most of holidays like Thanksgiving, Christmas, spring break, and summer. Get copies of your son’s textbooks and stay in e-mail contact with his teacher so you can help with homework.
I informed my ex of my intent to remarry and relocate my daughter to Mississippi, we live in Alabama presently. He objected so we went to court. The judge signed the proposed order submitted by my ex’s attorney prohibitting me from moving my daughter without my attorney submitting an order at all. I filed a motion for new trial, to amend, set aside or reverse the order and is set for oral argument. If the judge denies the motion what other legal avenue beside an appeal is there. My daughter has already been enrolled in school so I wouldn’t want to move until next May. Do I have the right to inform my ex again at that time or is the order set that I can never move?
The other options besides appeal aren’t pretty. Either make arrangements to stay in Alabama, or defy the judge and move, risking provoking the judge to unload on you with all the judge’s contempt powers, including jail time.
Are there any chances of a dad getting custody of two daughters? My ex is moving to another state and the kids do not want to go. They have a close relationship with my son by my wife now and this is tearing us apart. Anyone have any uplifting stories to motivate me I have a chance because I see my kids on a regular basis and I don’t want that cut down to 4 days a month with 2 of those days driving them back.. PLEASE ANY ADVICE OR MOTIVATING STORIES!!!
I don’t have any motivating stories, but I do have some advice: assuming you’re in Alabama, talk to a lawyer RIGHT AWAY about filing a petition for modification using the relocation statute as your basis. Your chances are actually pretty good.
I have joint physical and legal custody, my daughter stays with me 1/2 of the time. My ex is remarried, but we currently live in the same school district. My daughter has indicated to me that her mom has intentions of going on a 1 year assignment out of the country and wants to take my daughter with her. I don’t want to keep my daughter from the experience, but I also do not want to jeopardiize and future legal decisions by having this represented as my giving my daughter up for this “temporary” move. I am also concerned about the reloaction out of the states.
Hi,
My question is. My divorce was final in February 2006. I have a 4 year old daughter and I have sole custody with my ex having standard visitation. It was an ugly divorce. I left him in April 2005, and since then me and my daughter have been living with my Mother. We plan to move in with my fiancee in December. Right now we are about 30 miles away from him, when we move we will be less than 10 miles away from him. My ex has called my work place and home and threatened the lives of me, my family, and my fiancee. I have called the police and had this documented. My ex does not have much to do with my daughter. His parents or his sisters have always been the ones to get her for his visitation. They love her and she loves them. I have thought several times about filing a restraining order, but have not because I know that would strain the relationship that my little girl has with her grandparents and aunts, uncles, and cousins. I know I have to send him notice of the move with the address, telephone number, reasons for the move, and notify him that he has 30 days to object. My fiancee is a wonderful guy and he loves my daughter like his own. She too, adores him. Do I have to notify my ex that my fiancee will be living with us? My lawyer informed me that the courts do not look well on non-married couples living together with a minor child. Me and my fiancee had planned on getting married in August 2007. I do not want to break any laws by not notifying my ex that my fiancee will be living with us. But from what the law says, I just have to notify him that we are moving the address, phone, number etc. Like I said, my fiancee is a great guy and has been a blessing in my life as well as my daughters. Any advice you can give me on this would be greatly appreciated.
There’s nothing in the statute that requires you to tell Dad who else is going to be living in the residence with you, but my guess is it won’t take him long to figure it out.
Thank you…
I am just worried because my lawyer told me if he wanted to, he could try to get custody of my daughter because me and my fiancee are not married yet. My ex is a drug addict and was always verbally abusive to me during the marriage. He has continued to harrass me at home and at work with his vulgar and threatening phone calls. I really doubt that he would try to get custody. I know he will threaten to do so though. This is so frustrating. He can barely take care of him self. He also owes me a year in back child support. It makes me sad that he has acted the way he does. His parents and sisters and their families, love my daughter. I still want them to be a part of her life because she loves them too. If he does continue to harrass me, I feel I have no choice but to get a restraining order against him. I cannot live my life in fear that he is going to call and what he is going to say. I have to screen my calls at work and my employers are very aggravated about these phone calls. He calls, I get upset and it effects my work. Do you think I need to worry about a judge granting custody to him? Me and my fiancee have talked about going and getting married soon so this would not even be an issue.
Beats me. Most judges will agree on the request of either parent a clause that says something like this: “Neither party will have guests of the opposite sex not related by blood or marriage (and with whom they are romantically involved) to spend the night in the same residence where the Children are residing or visiting.”
Hi again.
It looks like (from reading online) that the clause —–
““Neither party will have guests of the opposite sex not related by blood or marriage (and with whom they are romantically involved) to spend the night in the same residence where the Children are residing or visiting.â€
Would have to have been in our divorce agreement. Is this correct?
I am going to send my relocation letter next week to my ex and pray for the best for my daughter’s sake. Thanks for all your help.
Look what NO Fault divorce has caused. When will the court consider what is truly best for the children? True love for our children is far more than our selfish natures seem to understand. Without love, self sacrifice, patience and a godly since of morality and traditional values, all our efforts are in vain. We live in such a selfish society and it is a shame our courts have the right to mandate how are children are to be raised, all in the name of “the best interest of the child.” How can I court fairly determine such things. I,m not a druggie, homosexual , adulterer or deadbeat, just a god fearing man who understands how important it is to set a good example to my children. Unfortunantly because of the courts is this country that god given right has been taken from me. You CAN NOT being a good parent if you don’t set a good example and spend LOTS of QUALITY time with your kids. Our legency in the world is not what we leave behind but who… Sorry LEE, just a thought..
I am divorced and our divorce papers state the “No unrelated overnight guest of the opposite sex between the hours of 9:00pm and 7:00am”. I have had friends helping me move all last week and three days we were there until 10-11:oo at night so that I will be moved out in time. The ex now claims that he has plans on taking me back to court and taking our children away from me due to people being at the house after 9:00pm. I feel that I am constantly being watched, to see that all guests have left my house by that time. Is that considered stalking or harassing and is there any leniency to this clause? This clause is seemingly becoming the norm in a few counties in Alabama. It seems to me that it takes away from our right to freedom. I am not a person to have people spend the night but even if a group of friends all with children go out to eat and to the movies if we are out after 9:00pm, I hear the wrath. Will it ever end?
My divorce papers do not have the overnight guest clause in it. Can this clause still be enforced somehow. Divorce was in Georgia but ex now lives in Alabama and has been living with boyfriend and my child ever since. In fact, that’s the reason for divorcing.
Talk with your lawyer. You can’t enforce it if it’s not in the decree, but your judge may be willing to add it at your request.
My lawyer is no longer practicing. Would I do this in GA where divorce to place or in alabama?
Can’t speak to GA law. I’m sorry.
My divorce with my ex-wife has only been final for a couple months now. I have joint custody but she is the primary custodial parent. I have the standard visitation rights but I get the child for at least one additional night each week and sometimes more. I gave up all rights to our house ($50,000 equity) so my son (will turn 3 in May of 2007)would not have to be uprooted. My wife is now selling the house and has informed me of her intent to marry someone she has met on the internet who lives in Wisconsin. She has told me she is doing this for financial reasons. She is very irrisponsible with her finances. In addition to my monthly child support I have had to pay for all of the utilities at least once to be turned back on because she failed to pay the bills and allowed them to be disconnected. I have also had to pay for my childs weekly daycare on three separate occasions because she failed to pay the bills in a timely manner. I have kept the child on many nights when she has either gone out partying or said she had work functions to attend. I have stayed home with the child on several different occasions while he was sick becuase she insist that we share those responsiblilities. I also kept the child when she flew to Wisconsin, which she claimed was for training with the mortgage company that whe works. This man doesn’t know her that well and he has never been around my three year old son. I strongly object to her taking him so far away in such an abrupt fashion. I have discussed this matter with my attorney but I am worried about my rights as a Father. The Courts always seem to favor the Mother and I cant stand the thought of not seeing my son on a regular basis. Please let me know your opinion.
My opinion is that this is precisely the kind of case the relocation statute is designed to address. Get with your attorney NOW and file to change custody from Mom to you. Your attorney may decide to add a request to enjoin Mom from moving while the case is ongoing.
Thank you for your timely response. I have scheduled an appointment with and attorney here in Mobile who practices nothing but family law. She has thrown another twist into the situation and I am distraught over this new information. She has informed me now that after almost three years that the child is not my paternal son. She has told me that whe will demand a paternity test if I try to take the child away from her. I love my child very much and my feelings would not change whatsoever if this turned out to be in fact true. I am going to proceed with this legally because I am not going to have her extorting me for the remainder of my son’s childhood. Do you have any opinion on the situation now that she has thrown this into the mix. I do not want to lose my child as this would be worse than anything I could possibly imagine. I cannot believe there are human beings like this. I don’t believe she really cares for the child. He has a Father who loves him dearly and cares for his well being more than the woman who gave birth to him. I am very stressed and worred about the entire situation. Thank you in advance for your time and information.
As your attorney will no doubt tell you, you are the presumptive father because you were the husband of his mother when he was born. This means you’re daddy until you say you’re not daddy. Mom can take out a billboard on I-10 and say you’re not, but the law doesn’t care.