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G.T.R. v. U.D.R.
Citations: 632 So. 2d 495; 1993 Ala. Civ. App. LEXIS 477; 1993 WL 481758Docket: AV92000380
Court: Court of Civil Appeals of Alabama; November 18, 1993; Alabama; State Appellate Court
In February 1992, G.T.R. (father) sought to modify a December 1991 divorce judgment that awarded custody of their two minor sons to U.D.R. (mother). He alleged sexual abuse of the younger son by the mother's boyfriend, later husband. This initial petition was denied. In August 1992, the father filed another modification petition citing additional instances of sexual abuse by the husband and other male acquaintances. The mother counterclaimed, leading to ore tenus proceedings where the trial court upheld the original custody arrangement. The father's subsequent post-judgment motion was denied, prompting this appeal. On appeal, the father argued the trial court abused its discretion by not removing the children from the mother’s home due to abuse allegations. Under Alabama law, a non-custodial parent must show that a custody change materially benefits the child's welfare and outweighs the disruption of uprooting the child, as established in Ex parte McLendon. Additionally, findings from ore tenus hearings are presumed correct unless there is clear abuse of discretion. The father reported to police that the younger son was allegedly abducted from daycare by a male acquaintance of the mother and sexually abused, but a daycare worker later clarified her mistaken identification of the child's father. The father has a history of making numerous unfounded accusations against the mother, including child and animal abuse, which were investigated and dismissed. He also admitted to threatening the mother and has a documented violent temper, along with a history of alcohol abuse, which he denies. The father acknowledged a past severe assault on the mother in October 1991 and has undergone psychological counseling and is on anti-depressants. During the trial, the younger son struggled to communicate effectively about the abuse allegations, providing mostly non-verbal responses. The child consistently denied any improper actions by his father, indicating 'no' in response to questions about abuse. Although several therapists believed the child had been sexually abused, the court found sufficient evidence to disregard this testimony due to significant pressures exerted by both parents. The child reportedly told counselors that his father instructed him to claim abuse while his mother told him to deny it. Testimonies revealed that the child's claims of abuse varied depending on which parent accompanied him to therapy sessions. Expert opinions on the child's abuse were primarily based on his own statements. However, the trial court maintained that an expert's opinion is not definitive and must be weighed alongside all evidence and observations. The ore tenus rule affirms that trial courts have the advantage of assessing witness credibility firsthand, particularly crucial in custody cases. Since the evidence presented was conflicting, the trial court's ruling is presumed correct unless there's a clear error. After reviewing the case, the court found that the father did not meet his burden of proof, leading to the affirmation of the trial court's judgment.