Alabama Visitation Can’t Be Controlled by CP

The Alabama Court of Civil Appeals says it’s reversible error to make visitation with children subject to the control of the custodial parent, even when the non-custodial parent exposed the child to violence and drug use. The Appeals Court in L.L.M. v. S.F. and C.F., Case No. 2040280 (Ala. Civ. App. July 8, 2005) said the trial court should have ordered a specific visitation schedule.

The juvenile court of Colbert County had initially placed the child in the custody of the paternal grandparents when he was six to eight months old. On April 7, 2004, when the child was 3-4 years old, the juvenile court granted the mother’s petition for custody and removed the child from the custody of the paternal grandparents. Five months later, the paternal grandparents filed an emergency petition seeking custody of the child again. The father intervened a few days later and asked the court to award custody to him. The juvenile court granted the father’s petition, found the child to be dependent, and awarded the father custody of the child.

The evidence before the juvenile court indicated that the child, while living with the mother, had been exposed to violence, drunkenness, lewd behavior, and foul language. The juvenile court concluded that the mother had simply fooled the court into believing she had changed her behavior, that her actual behavior was unchanged, and that the mother had placed the child in an environment that “endangered the morals, health, or general welfare of the child.” Ala. Code .” § 12-15-1(10)f.

So far, so good. The Court of Appeals found that, once the juvenile court established that the child was dependent, it didn’t need to meet the stringent test of Ex parte McLendon, 455 So. 2d 863 (Ala. 1984) in order to transfer custody. The juvenile court had ruled that the facts in this case met that more stringent standard, so the Court of Appeals found that the juvenile court had ample justification for changing custody.

The Court of Appeals said the juvenile court had erred, however, when it designed the mother’s visitation with the child. Here’s what the juvenile court had said about the mother’s visitation:

The mother shall be allowed to visit the child at reasonable times when the father or the child is in the locality in which the mother resides. The father shall give 48 hours notice prior to any occurrence of visitation and the visitation should be no longer than 48 hours in duration unless otherwise agreed upon by the parties. All visitation during this time period will be under the supervision and direction of the father, one of the [paternal] grandparents, or another suitable adult designated by the father. … After the child has reached the age of 9 years old, the visitation will be governed by the ‘Standard Visitation Out-of-State’ in use by the 31st Judicial Circuit unless the parties can agree between themselves on another suitable arrangement.

The Court of Appeals reversed the juvenile court’s visitation award, holding that it impermissably placed the father in control of the mother’s visitation by limiting it to “times when the father or the child is in the locality in which the mother resides.” Relying on K.L.U. v. M.C., 809 So. 2d 837 (Ala. Civ. App. 2001) and Bryant v. Bryant, 739 So. 2d 53 (Ala. Civ. App. 1999), the Court of Appeals said the juvenile court erred in failing to order a specific visitation schedule.

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