Determining child custody can be a difficult task for a court. Often, even when both parents are capable of caring for the children, a court will award sole physical custody to one parent over the other.
Recently, in Coffee County, in Bardolf v. Bardolf, the Court of Civil Appeals addressed the need for specificity in the terms used in custodial agreements with regard to future modification proceedings.
Pursuant to the divorce judgment between the parties, the mother was granted sole physical custody of their children, while the father was granted “liberal” visitation. In January 2015, the trial court entered a modification order that when the mother returned to Alabama in August in 2015, the parties would “split weekdays” and alternate weekends with the children. In April 2016, the trial court entered another modification judgment, containing a revised visitation schedule.
In September 2016, the father filed a modification action seeking “primary physical custody” of the children. At trial, their 16-year-old daughter testified that she would like the father to have full custody of her and her sister, testifying to her father’s attentiveness and constant fighting with her mother. The 14-year old daughter also testified to having a deteriorating relationship with the mother. The trial court entered an order denying the father’s modification petition. He appealed.
The Court noted that the parties’ divorce judgment unequivocally granted physical custody to the mother. The father challenged the order denying his modification petition but both modification judgments addressed visitation; neither addressed a change in physical custody. Because the physical custody had not changed, the trial court had applied the correct standard.
Furthermore, the father argued that the testimony of his daughters’ desires to live with him was enough to overcome the primary custody award and any legal standards. However, the discrepancy between the children’s testimonies and the mother’s testimonies was for the court to resolve. The trial court’s judgment that primary custody remain with the mother was affirmed.
The main takeaway here is that in order to challenge sole physical custody, you have to challenge the divorce judgment granting the custody itself, not merely a modification order. Additionally, while the testimony of children may be heard in order to determine changes of testimony, appellate courts may still defer to the fact-finding abilities of the trial court and maintain the status quo, especially when there are two fit parents available.
It is important to seek an experienced attorney who understands the realities of Alabama family law. If you need a family lawyer, contact INGRAM LAW LLC at (205) 656-0044 for help with your case.