The Alabama Court of Civil Appeals has made its strongest statement yet in defense of, and interpreting, the Alabama Parent Child Relationship Protection Act, commonly known as the relocation statute. Speaking in its Per Curiam (for the Court) opinion in Toler v. Toler, Case No. 2040757 (Ala. Civ. App. June 30, 2006), the appeals court reversed a trial court’s decision to allow the mother of a child to move and take her child with her without rebutting the presumption against relocation built into the statute.
The mother, who lived within easy walking distance of the father south of Birmingham, notified the father on May 25, 2004 that she would be relocating to Dothan. The father filed a petition to modify custody in June, 2004. The father alleged that the that the father and the child had frequent contact with each other (more frequently, in fact, than provided in the visitation schedule), that the child preferred to live with the father, that the father’s mother (who lived near the father) and the son had a good relationship, and that the child was active in school, church, and extracurricular athletics, all of which would be disrupted by the move. The father requested a temporary order enjoining the mother from moving or awarding pendente lite custody to the father.
The trial court received multiple affidavits from the parties (apparently in response to the trial court’s request for them) but did not hold a hearing before denying the father’s motion for temporary relief. The trial court set the case for hearing on the father’s petition to modify for December, 2004. The mother and the son relocated to Headland, AL (near Dothan) together with the mother’s husband.
In December, 2004 trial setting was continued to March, 2005. At the hearing, the father presented his case for changing custody, during which the mother’s husband provided testimony “out of turn” by agreement of the parties. After the father had presented his case, the mother made an oral “motion for directed verdict.” The trial judge met with the attorneys for both parties in chambers, and recessed the proceeding. In April, the trial court issued an order stating that the father’s petition was “due to be denied.” The father appealed after the trial court denied his motion to alter, amend, or vacate.
The appeals court noted that the record contained no mention of any domestic violence. Therefore, said the court, there was a rebuttable presumption from Ala. Code §30-3-169.4 that the move was not in the child’s best interest. “The mother bore the initial burden of proof as to whether a change of principal residence was in the son’s best interests in light of the factors described in § 30-3-169.3(a). Until that burden of proof was met, the burden of proof in the present case did not shift to the father.”
The appeals court said that the mother’s affidavits and the testimony were not enough to meet her burden of overcoming the presumption against relocation. The appeals court mentioned specifically the disruption to the son’s life required by the move, the father’s frequent contact with the son, the sharp curtailment of that contact at the mother’s insistence after the mother’s move, and the father’s self-employed status (which allowed him to be home frequently during the day).
The appeals court said that
by moving to Headland, the mother uprooted the approximately 14-year-old son from his home, his friends, his school, his church, and his other day-to-day activities and contacts. Under the evidence presented, it appears that a change of custody to the father would have left much of the son’s day-to-day life intact and would have been less disruptive to the son than leaving custody with the mother. We also note that it is undisputed that in the spring of 2004, before any discussion occurred about moving to Headland, the son expressed his desire to reside with the father, a desire that the son reiterated at trial. “While not dispositive, the preference of a child with regard to its custody is entitled to much weight.” See Brown v. Brown, 602 So. 2d 429, 431 (Ala. Civ. App. 1992); see also Ex parte Devine, 398 So. 2d 686, 697 (Ala. 1981) (holding that a trial court must consider the preference of a child of sufficient age and maturity).
Concluding that the trial court erred when it dismissed the father’s petition, The appeals court said that the initial burden of proof was on the mother, who needed to rebut the presumption that a change of residence was not in the son’s best interests. It was therefore error for the trial court to dismiss the father’s petition without requiring the mother to meet her burden.
There are four concurring opinions, together making it clear that the court is unsettled on whether the relocation statute “supplants” Ex Parte McLendon, 455 So. 2d 863 (Ala. 1984). The appeals court had stated earlier in Clements v. Clements, 906 So. 2d 952 (Ala. Civ. App. 2005) that Ex Parte McLendon survived the relocation statute. Now at least one justice, Justice Murdock, is questioning that decision.
Lee’s Note: This case deals with a situation in which the mother had sole physical custody. In situations involving joint physical custody, the appeals court has made it clear that Ex Parte McLendon does not apply. More about that tomorrow, when I will write up the case of Drew v. McCullar, Case No. 2040866 (Ala. Civ. App. June 30, 2006).