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Recent Child Custody Case Out of Madison County, Alabama

This is an appeal from a child custody case in Madison County, Alabama. The parties were divorced in 2008. Primary physical custody of the children was awarded to the father. The parties agreed that the mother would not be required to pay child support because she only maintained part-time employment at the time of the divorce. In August 2010, the State of Alabama, on behalf of the father, filed a petition to modify the divorce judgment. In December 2010, the mother filed a pleading containing a petition for contempt and a request to modify visitation. Before the trial court held a hearing in either case, the mother filed an “Emergency Motion for an Immediate Change in Custody” in the custody-modification case. She alleged that the father had physically abused the children. The trial court consolidated the cases and received evidence at three hearings held between July 2012 and September 2013. On May 5, 2014, before the trial court had entered judgments in the two cases, the mother filed a “Renewed Ex-parte Motion for Custody.” In that motion, the mother claimed that, since the conclusion of the trial, she had received new evidence indicating that the father had committed domestic violence. There is no indication that a hearing was held on that motion. On June 4, 2014, the trial court entered judgment it denied the State’s request for child support and awarded the parties the joint physical custody of the children. It did not require either party to pay child support. The father appealed both judgments. Reversed.
The father was awarded primary physical custody of the children in the original divorce, the Court concluded that the mother was required to meet the standard set forth in Ex parte McLendon, and must demonstrate that she is a fit parent.
“The mother presented no evidence as to the parties’ circumstances at the time of the divorce, no evidence as to why the father was initially awarded primary physical custody of the children, and no evidence indicating that those circumstances, whatever they may have been, had changed.” With regard to the mother’s claims of domestic violence, the evidence was disputed as to whether the father’s use of corporal punishment was appropriate or excessive. Under the Custody and Domestic or Family Abuse Act (“the Act”), Ala. Code 1975, § 30-3-133, there is a presumption that a change of circumstances has occurred if there is a finding of domestic violence. In this case the trial court did not make any findings of fact regarding domestic violence.
In Alabama, “[t]he Act and our case law make it clear that joint physical custody is not appropriate when a trial court makes a finding that domestic violence has occurred unless the perpetrator of domestic violence has clearly rebutted the presumption against joint physical custody.”
In the case at hand, the appellate court could not determine if the McLendon standard was applied or if the court made a finding of domestic violence, the judgment of the trial court was reversed for further proceedings. It will be interesting to see if the mother can show domestic violence on the part of the father and what the outcome will be.

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