Nix to One Year with Mom, One Year with Dad

The Alabama Court of Civil Appeals has reversed a trial court’s custody ruling on the sole ground that it alternates custody of the child from year to year. In Headrick v. Headrick, Case No. 2030690 (Ala. Civ. App. June 17, 2005), there was evidence of domestic violence committed by both spouses against each other but not against the child. There was evidence that both parties had used drugs.

The trial court stated in its opinion that it believed both spouses had been less than candid in their testimony and called the case “a sad situation.” It ordered joint custody (which by definition means both joint legal and joint physical custody). It ordered that the child should live with his Mom during even numbered years and with his Dad during odd numbered years. It ordered that the primary custodian would determine each academic year where the child should attend school.

The wife appealed, arguing that (a) the trial court should have honored the presumption against allowing the perpetrator of domestic violence to have custody of a child and (b) forcing the child to change residences (and likely schools) each year was not in his best interest. The Court of Appeals specifically found that it could not determine that the trial court was plainly and palpably wrong in its determination about the presumption against custody for a perpetrator of domestic violence.

The Appeals Court did find, however, that the custody plan was reversible error because it forced the child to change residences and schools every year. “The alternation of residence and primary physical custody guarantees a recurring, yearly disruption in this young child’s life for which we find no justification in the record.”

In its finding, the Appeals Court referenced Ex parte McLendon, 455 So.2d 863 (Ala. 1984) (which requires the party seeking a change in an existing custody arrangement to show that the “positive good” the change will achieve will more than offset the disruptive effect caused by uprooting the child”).

The Appeals Court also noted that the legislature has recently enacted the relocation statute (the Alabama Parent Child Relationship Protection Act) at Ala. Code § 30-3-169, which stated a rebuttable presumption that a move of the child more than 30 miles away was not in the child’s best interest.

The Appeals Court specifically distinguished between the annual plan in this case and “split-custody arrangements in other cases where a child spends several days per week with each parent or alternates custody after one or more weeks at each parent’s residence. In those cases, which typically involve parents who live in the same community, there may be a greater possibility of continuity and the development by the child of stable scholastic, social, religious, and family routines and relationships, even though he or she may be forced to alternate between two residences.”