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.