When Mom Lives in Two Places

We now can state with certainty: a substantial change in residence of a custodial parent is a material change in circumstances. The case is Marsh v. Smith, Case No. 2080479 (Ala. Civ. App. October 30, 2009). Mom and Dad divorced and agreed to equal time parenting for their daughter, one week with Dad, one week with Mom. It was working fine until Mom remarried two years later and moved to Mississippi. Dad filed for custody, citing the Alabama Parent Child Relationship Protection Act, better known as the relocation act. Mom counterclaimed for custody.

The move was a small one geographically, either 57, 64, or 47 miles, depending on which party’s testimony you believe, or in the third case whether you just look on Google Maps at the distance between the two towns. The distance didn’t matter, though, because the move was across the state line. Mom acknowledged that she lived in Mississippi, but she said she used her in-laws’ house in Alabama when she was with the child.

After a hearing, the trial court said that there was not a material change in circumstances because Mom “resides in [Alabama] when the child is with her.” The trial court dismissed both parties’ petitions and ordered the parties to continue the weekly rotation pattern. Dad appealed.

Dad argued that the court’s statement that Mom “resided” in one state while domiciled in another was error. The appeals court rejected that argument, saying that a person can have only one domicile but may have more than one residence.

This case becomes more complex, because the relocation act never contemplated an equal time parenting plan. It speaks in terms of the change in “the principal residence” of a child, and defines principal residence (in the absence of court order or agreement otherwise) as the place where the child has resided for the last six consecutive months. If the child lived one week with Mom at her address and one week with Dad at his address, the child never stayed anywhere for more than a week. Does that mean it never had a principal residence?

The appeals court simply assumed that a child can have two principal residences, even though the statute doesn’t say that. The appeals court accepted Dad’s argument that Mom’s change of her principal residence (and consequently one of the child’s two principal residences) is as a matter of law a material change in circumstances.  The appeals court reasoned that if Ala. Code § 30-3-169.4 sets up a presumption that a substantial move (limited by Ala. Code § 30-3-162(b) to a move of more than 60 miles away from the other parent or to another state) is not in the child’s best interest, that move is necessarily a material change.

The trial court’s erroneous conclusion that there had been no material change of circumstances flowed from its factually correct but legally immaterial finding that the mother “resides in Mobile County when the child is with her.” It appears that the trial court decided that the parties’ original joint-custody arrangement was still workable because the mother had been exercising her visitation rights in Mobile County pursuant to a pendente lite agreement. However, the trial court’s judgment did not require the mother to continue to exercise her visitation or custodial rights in Mobile County as a condition of maintaining joint custody of the child, nor did it otherwise place any restrictions on its reaffirmation of the custody and visitation provisions of the parties’ divorce judgment. Because nothing in the trial court’s judgment would prevent the mother from exercising her custodial periods with the child in Mississippi, we cannot conclude that the trial court’s judgment was responsive to the pleadings or faithful to the concerns underlying the passage of the Act. Marsh at 10-11.

The quoted language seems to be suggest that the trial court could have disposed of the case by requiring Mom to exercise her visitation rights in Mobile County, but then the appeals court went on to suggest the trial court needed to apply the presumption of the relocation act in a different way.

The father insists that the trial court erred in failing to evaluate the parties’ custody-modification requests in light of the Act. Specifically, he asserts that because the trial court found that the mother was a resident of Mobile County during the time she had the daughter in her custody pending the trial of this case, the court failed to apply the presumption of § 30-3-169.4 and failed to allocate the burdens of proof attendant to that presumption properly. We agree. The trial court’s determination that the mother “resides in Mobile County when the child is with her,” in effect, bypassed both parties’ custody-modification petitions and short-circuited the requirements of the Act.

It’s hard to know for sure, but the appeals court seems to be saying that the trial court must apply the statutory presumption of Ala. Code § 30-3-169.4 and presume that Mom’s move is not in the child’s best interest. Looks like a significant victory for Dad.

2 comments

  1. Mary says:

    At what age will my son, now aged 11 but about to turn 12, be able to state his preference about which parent should have custody over him? I’ve heard that at age 14 he can state his preference, but I’m not sure how much weight that is given by the courts.

  2. Lee Borden says:

    If you’re in Alabama, there is no fixed age at which the child may choose which parent. Personally, I’m glad that’s the case. I shudder at the thought of asking a child to choose between parents.

Leave a Reply

Your email address will not be published. Required fields are marked *