Domestic Violence and Ore Tenus

Alabama courts are required to presume that the perpetrator of domestic violence should not be awarded custody of minor children. How violent must one be to fall into this classification, and what circumstances might cause a court to find that the presumption has been rebutted? The Alabama Court of Civil Appeals struggled with these questions in Lamb v. Lamb, Case No. 2040487 (Ala Civ. App. January 20, 2006).

The trial court heard evidence from the wife and from others that the husband was abusive to her. A neighbor testified that he had called the police more than 10 times to report “incidents,” including one occasion when the neighbor saw the husband slap to the ground the wife’s child from a previous relationship, and another occasion when the neighbor saw the husband knock the wife down and almost off their front porch. The husband’s former girlfriend also testified that he was violent toward her and toward their child.

The trial court also heard evidence unfavorable to the wife, including allegations that the parties’ child was poorly cared for by the wife, that the wife’s children all have had trouble with head lice, and that the husband was a devoted and attentive father to the parties’ child.

The trial court initially awarded custody of the child to the husband. After the wife filed a motion for a new trial, the court observed that, although there was evidence of a “skirmish” between the parties, there was no evidence that the husband had been violent toward the child.

The appeals court affirmed. The appeals court acknowledged the Custody and Domestic or Family Abuse Act (CDFAA), Ala. Code § 30-3-130 et seq., which provides:

In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is detrimental to the child and not in the best interest of the child to be placed in the sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic or family violence. Notwithstanding the provisions regarding rebuttable presumption, the judge must also take into account what, if any, impact the domestic violence had on the child.

However, the appeals court relied on Ex parte Fann, 810 So. 2d 631 (Ala. 2001), in which the supreme court held that the Act does not requre the trial court to make a specific finding as to whether domestic violence has in fact occurred and that it does not require the trial court to state the findings supporting a conclusion that that a parent has rebutted the presumption against custody.

Considering that the judgment refers to the conflicts the husband and the wife had as a “skirmish,” it appears that the trial judge did not believe that the alleged abuse, if it actually occurred at all, rose to the level of abuse necessary to invoke the provisions of the [CDFAA]. Consequently, the rebuttable presumption that an abusive parent should not be granted custody of his or her child would not apply. Alternatively, because the trial judge characterized the alleged abuse as a “skirmish,” it also appears that the rebuttable presumption that the husband is unfit to have custody of the parties’ child pursuant to § 30-3-130 et seq. could have been overcome by the other evidence presented at trial. Consequently, we affirm the portion of the trial court’s judgment awarding custody of the couple’s child to the husband.

In his special concurrence, Judge Thompson appealed to the state supreme court to rethink its holding in Fann that the trial court need not make express findings when there is an allegation of domestic violence in a custody case.

The evidence presented to the trial court in the present case indicates that the husband has committed acts of domestic violence. Three witnesses testified on behalf of the wife that they had witnessed the husband’s violent behavior. A neighbor testified that he witnessed the husband knock the wife onto the ground, slap one of the wife’s children, and punch a puppy in the face. The husband’s former girlfriend testified that the husband had physically abused her on numerous occasions and had struck their child, who was then six months old, in the mouth. Finally, the wife’s mother testified that she had witnessed the husband physically abuse the wife many times and commit acts of animal cruelty. The judgment of the trial court, which awarded custody of the parties’ child to the husband, merely noted evidence of a “skirmish” between the parties. Given the evidence presented at trial and the trial court’s judgment, it is difficult to ascertain whether the trial court believed that the alleged abuse had occurred or whether or not the trial court considered the alleged abuse when deciding the custody issue.

In his special concurrence, Judge Pittman challenged (and disagreed with) Judge Thompson.

If the Legislature wishes to amend the CDFAA so as to mandate express findings of abuse in custody cases (and Judge Thompson’s special writing offers sound reasons for undertaking such a course of action), that body has the power to do so. Barring such action, however, it is not the province of the judiciary to improve upon the CDFAA. See Ex parte Brookwood Med. Ctr., Inc., 895 So. 2d 1000, 1006 (Ala. Civ. App. 2004).

In his special concurrence, Judge Bryan stopped short of calling for a change in Fann, but he invited the legislature to address the problem by amending the CDFAA.

Lee’s Comment: As one who has been relentless in pointing out the appeals court’s tendency to brush aside ore tenus too easily, I must confess that my heart wishes the court had brushed it aside here. There’s something offensive (to me at least) about any trial judge who would hear testimony that a habitually violent husband knocked his wife to the ground and almost off the front porch of her house and then refer to it as a “skirmish.” If the trial court found the allegations of the husband’s abuse not to be credible. it should have said so. The use of the term “skirmish” implies that the court believed the accounts but did not find the husband’s conduct objectionable.

2 thoughts on “Domestic Violence and Ore Tenus”

  1. I understand this fully situation although my child is still in the custody of a man who openly admitted to the judge that he held me in a corner with a loaded weapon. The judge plainly stated that it was in the best legal interest of the child to be with the father.

  2. Unfortunately this happens all too often with domestic violence cases. I had police reports and pictures and my case was dismissed on in sufficient evidence to convict. My ex has physical custody of our son following a nasty divorce with many “issues” that arrised. Needless to say the judge ignored all claims of domestic violence based on the dismissal (which happened in another state) and I got visitation. Then after the divorce was finalized I found evidence of another domestic violence report where he got into it with the girl he cheated on me with.

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