One of the most difficult parts of drawing up a custody arrangement can be determining visitation. This facet can be further complicated when the two parents live out of state and are trying to make visitation as “equal” as possible.
Recently, in Lauderdale County, in Freeback v. Freeback, the Court of Civil Appeals addressed postjudgment motions on the husband and wife’s visitation arrangement. In June 2015, after filing for divorce, the wife filed an emergency motion asking the trial court’s permission to relocate to Louisiana.
Despite the husband’s objection, the trial court orally granted the wife’s request. In January 2017, the trial court entered a divorce decree. This decree did many things, including awarding the parties joint legal custody of their children.
The visitation schedule was complex: the husband would have visitation on any weekend when the children have a “long weekend.” Additionally, in any month that does not contain a long weekend, the husband has visitation on the first weekend in Louisiana and the third weekend in either Alabama or Louisiana. The husband also has holiday visitation.
If the husband drives the children to Louisiana for visitation, the wife is required to deliver the children to Florence on the next scheduled visitation. Following this decree, both parties filed postjudgment motions, which were denied. The wife appealed and the husband cross-appealed.
The wife argued in her appeal that the trial court erred by failing to hold a hearing on her postjudgment motion. Alabama law mandates that when a hearing on a postjudgment motion is requested, a hearing must be granted, and it is not harmless error if there is probable merit to the motion. The Court found that there was probable merit to her challenge to the visitation schedule.
Similar provisions to the parties’ plan requiring bimonthly travel of length duration (such as between Alabama and Louisiana) have been held to be an abuse of discretion and thus a challenge to that visitation schedule would likely have merit. The trial court’s judgment as to the wife’s arguments is reversed so that a postjudgment hearing can be heard.
The husband argued that the court applied the wrong factors in evaluating the wife’s request to relocate to Louisiana with the children. He argued that those factors are only appropriate for evaluating a change of custody. However, because the husband did not raise this at the trial court level, he could not raise it on appeal. Even so, the Court found that those factors could evaluate the wife’s move. The trial court’s judgment as to the husband is affirmed.
The main takeaway is that due to the complicated nature of visitation schedules it is essential to raise proper issues at the trial court level and to have trial courts address those issues properly in postjudgment hearings.
It is important to seek an experiencedchild custody attorney who understands the realities of Alabama custody law. If you need a child custody lawyer, contact INGRAM LAW LLC at (205) 335-2640for help with your case.