E.F.B. v. L.S.T.

Citations: 157 So. 3d 917; 2014 Ala. Civ. App. LEXIS 36; 2014 WL 783499Docket: 2120634

Court: Court of Civil Appeals of Alabama; February 27, 2014; Alabama; State Appellate Court

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E.F.B., the father, appeals a custody modification judgment from the Houston Circuit Court, which awarded primary physical custody of the children to L.S.T., the mother. The trial court found that the mother met the custody-modification standard established in Ex parte McLendon. The father counterclaimed for changes to the mother’s visitation rights. Initially, the parties had joint physical custody of their three children, M.B., H.B., and A.B., ages 15, 12, and 10 at trial, but issues arose after the father became increasingly concerned about M.B.'s behavior, including substance use and lying. Tensions escalated, culminating in the father expressing extreme frustration during a family meeting. Following counseling and a school change, M.B. improved, leading the mother to request increased custody. The father initially resisted but later allowed M.B. to move in with the mother after further incidents. He expressed feelings that the mother's parenting style undermined his discipline efforts, ultimately stating that if they could not co-parent effectively, he would concede custody to her. The trial court confirmed the application of the best-interest standard in its ruling. The appellate court affirmed part of the trial court's decision while reversing other aspects, indicating a mixed outcome for the father’s appeal.

By February 2012, M.B. expressed a desire to live full-time with her mother, citing a lack of welcome at her father's home and a preference for the stability she felt with her mother. M.B. remained upset over past comments made by her father during a 2011 family meeting and indicated that she felt her father was still angry with her. She was also unhappy about being asked to testify in a prior custody trial. The father, seeking to co-parent effectively, suggested that if M.B. needed a safe haven from difficulties, she should stay with the mother.

M.B.'s sister, A.B., reported feelings of sadness while at their father's house, mentioning incidents where she was left alone with her five-year-old stepsister, which made her afraid. A.B. expressed a preference for spending more time with their mother, particularly when their father was unavailable due to work. The father and his wife claimed that the mother disrupts their household with frequent calls to the children.

The father testified about rarely leaving A.B. alone with younger children and indicated that his wife works only on the days the mother has custody. A.B. had occasionally babysat at the father's request. M.B. remarked that her father was not investing enough time in their relationship during his custodial periods. The mother voiced concerns about the children being left unsupervised at their father's home.

The father's wife defended their household rules regarding homework and bedtime, asserting that the children are happy there. The father claimed that his children are fine with the current custody arrangement, while the mother noted that after her request for full custody of M.B., the father became more stringent about enforcing custodial times and visitation flexibility.

The father testified that he initially allowed the mother to pick up the children on his custodial days but ceased this practice due to her not bringing the children directly to his house and causing distress during farewells. After the mother objected to him picking up the children from school, he began making arrangements to do so himself. The mother noted a deterioration in cooperation regarding custody since they began sharing it, asserting that the younger children would benefit from a more stable arrangement with her due to her unemployment allowing her to be at home.

On appeal, the father contended that the trial court improperly modified custody. The court first needed to establish the correct modification standard. Although the details of their September 2010 settlement agreement were unavailable, both parties agreed it granted them joint physical custody. The evidence suggested they exercised physical custody roughly equally post-modification. According to Alabama law, joint physical custody can be modified based on a material change in circumstances that serves the children’s best interests, as established in Ex parte Couch.

The father argued that since the modified judgment designated him as the primary custodian, the more stringent Ex parte McLendon standard should apply for the mother to obtain custody. However, precedent from New v. McCullar indicated that the McLendon standard does not apply when the judgment awards joint physical custody. The court concluded that the trial court mistakenly applied the McLendon standard for custody modification. Under Alabama’s joint-custody statute, joint physical custody is defined as shared custody ensuring substantial contact with both parents, which aligns with the parties’ custody agreement that allowed for significant time with both parents. The arrangement provided for the child to reside with the father nearly half the month and during designated holidays, meeting the statutory definition of joint physical custody.

Both parties maintained significant contact with the child, living in the same area and sharing responsibilities such as school drop-offs and extracurricular activities. The child often stayed overnight with the father. The court determined that the mother's majority custody did not negate their joint physical custody arrangement, referencing that the statute does not require equal time. Prior rulings indicated that a slight imbalance in custody days does not trigger the McLendon standard. The court found that despite the divorce judgment stating the mother as the primary residence, this did not contradict their joint custody status as defined by Alabama law. The McLendon standard was deemed inapplicable due to the existing joint custody arrangement, thus the best interests of the child standard applies for any modifications. To change a custody judgment, a petitioner must show a material change in circumstances and that modification serves the child's best interests. The father's appeal, which primarily focused on the McLendon standard, also claimed no material change occurred to warrant modification. While some cases suggest custody judgments have no res judicata effect, they do hold res judicata effect regarding the facts present at the time of the original judgment.

A court's custody judgment for a child is final unless there is a material change in circumstances since the judgment was made. In Alabama, a noncustodial parent must demonstrate such a change to modify custody, which includes proving either a change in existing circumstances or new facts that impact the child's welfare. The noncustodial parent need not show that the change is detrimental but can also establish that it promotes the child’s best interests.

In a specific case, the father's deteriorating relationship with the child M.B. was deemed a material change in circumstances, justifying a custody modification. Conversely, regarding the two younger children, the trial court found insufficient evidence of a material change. The mother’s claims of the father’s inflexibility in shared custody and a lack of cooperation were inadequate grounds for modification, as legal obligations to share custody do not exist. Evidence suggesting that one child preferred the mother’s custody mirrored previous cases where similar evidence did not suffice to warrant a custody change.

The mother failed to provide evidence demonstrating a material change in circumstances since the joint-custody arrangement was established in September 2010, specifically regarding the father's work schedule or the relationships with the children, A.B. and H.B. The court assumes that the joint-custody decision was made with A.B.'s best interests in mind and finds no significant changes affecting the custody arrangement for either child. Both children have adjusted well to the existing arrangement, and the mother did not present valid reasons for altering it. The trial court’s decision to modify custody in order to keep siblings together aligns with Alabama law, which generally discourages separating siblings but also mandates an individual assessment of each child's best interests. The court concluded that no material changes warranted a shift in custody for A.B. and H.B., and mere differences in living situations compared to their older sibling do not justify disrupting their current beneficial arrangement. Joint custody is favored in Alabama unless there is concrete evidence of adverse impacts on the children. Consequently, the court reversed the judgment modifying custody for A.B. and H.B. while affirming the modification for M.B., remanding for further proceedings consistent with this opinion. The court also ruled against considering attachments outside the record on appeal, reiterating the standard that modifications require evidence of material changes that promote the child's welfare, as established in prior case law.