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Family Law
University of Alabama School of Law
McGuire, Bill

Special Problems in Family Law Class Notes

Professor Bill McGuire
– practicing family law attorney in Tuscaloosa; went to UA Law School

Class Overview
– Take Home Exam due on Thursday Nov. 30, 2006
o 100 questions (mainly fill in the blank and true/false)
o take good notes b/c exam questions come straight from lectures

Relocation of Custodial Parent
– historically, mother got custody of child; relocation wasn’t a big issue
– more working mothers & gender-neutral courts have made relocation a big issue
– more men are getting custody of their children

Alabama Parent-Child Relationship Protection Act S. 30-3-160 – 30-3-169.10
– “notice statute” (on exam)
– passed by legislators from our state who were divorced and weren’t able to spend time with their children as a result
– changed the landscape of custody and visitation in the state of AL
– promotes the general philosophy that children need both parents, even after a divorce
– if any custodial parent decides that he/she wants to move, then he/she must give notice of the move to the non-custodial parent
– if wife wants to move to TN, then she must send certified letter to father of child 45 days before the move stating her new address, phone number, child’s school, reason for the move, etc.
– applies to every move involving minor children, even those just down the block
– if the custodial parent moves more than 60 miles away or across state lines, then the non-custodial parent can challenge the move; non-custodial parent can ask for temporary restraining order to prevent the move within 30 days after receiving notice of the intent to move the child; if the non-custodial parent does not object within 30 days of receiving notice of the move, then the move is authorized
– no age in Alabama when child can pick where he/she wants to live
– in determining where child will live, the court will take into account the following factors: (see S. 30-3-169.3)
o preference of the child, taking into account the age and maturity of the child
o the extent to which custody and visitation rights have been allowed and exercised
o the reasons of each person for seeking or opposing a change of principal residence of a child
– established a rebuttable presumption against the change of principal residence of the child; burden of proof falls on the custodial parent who wants to move

Clements v. Clements (Ala. Civ. App. 2005)
– Facts: The mother met a guy on the Internet, and they got married. She wants to move to NY, but the father challenges the move under the AL Parent-Child Relationship Protection Act. The child has lived in Prattville his entire life.
– Holding: The mother meets the initial burden of proof by showing the enhanced cultural opportunities in NY, including better schools. The burden shifts to the father to demonstrate how the change in residence is not in the child’s best interest. The father fails to meet that burden, especially comparing a culturally rich life in NY to working at the flea market in Bumfuck, AL. The court grants the mother’s request to move the child to NY.

Toler v. Toler, 2006 WL 1793209 (Ala. Civ. App. 2006)
– mother has the sole burden of proof in the case; no burden shifting to the father to demonstrate how the move is not in the child’s best interest
– father can simply argue that child’s best interest is served by staying put

Child Custody & Visitation; 3rd Party Custody & Visitation
– standard visitation: every other weekend with the non-custodial parent from 5 PM Friday to 5 PM Sunday
– in typical custody battles, “best interest of child” standard applies
– Typically, there are case law factors that enunciate what the court should look to in determining best interest of child. None of the factors are conclusive. The judge is vested with a lot of discretion to determine the best interest of the child.
o MN Ct factors (p. 460)
§ The wishes of the child’s parent or parents as to custody
§ The reasonable preference of the child if the ct deems the child to be of sufficient age to express preference
§ The child’s primary caretaker
§ Mental and physical health of those involved
§ Any domestic abuse that may be present
o Alabama § 30-3-1
§ Upon granting of divorce a court may give custody of children to the father or mother as may seem proper with regard to the miral character and prudence of the parents, and the age and sex of the children
– “Pedente lite” hearings (Band-Aid hearings) – seek temporary solutions to issues that will be heard at trial; court can remove a party from the household (usually for drug/alcohol problems, violence, etc.), require child support, & even determine who sleeps in the master bedroom
o Becoming the norm b/c of case backlog (usually takes 1 year before case goes to trial and may take 2-3 years)
– Cts appoint experts in cases
o Guardian ad litem: lawyer for child who is supposed to look out for the best interest of the child; each parent is required to pay one-half of the fees
o Psychological evaluations of

o The majority, led by Justice O’Connor, found the statute to be “breathtakingly broad” and declared it UC.
o The state visitation statute infringed on “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”
– AL Grandparent Visitation Statute S. 30-3-4.1: after Troxel decision, the rebuttable presumption in favor of grandparent visitation is no longer valid; case by case basis whether grandparent visitation should be granted
– Richberg v. Richberg (Ala. Civ. App. 2004): father’s parents requested visitation through court system but it was denied; ct held that if a parent objects to grandparent visitation, it can still be ordered
o “Grandparents must prove by clear and convincing evidence that the child would be substantially harmed by the father’s decision to deny them visitation.”
– Dodd v. Burleson (Ala. Civ. App. 2005): latest case on grandparent visitation; ct held that standard elucidated in Richberg was in error; ct must consider a broad array of factors
o “Grandparents must prove by clear and convincing evidence that the visitation would be in the best interest of the child.”
– AL factors used to determine child custody (pulled from Ex Parte Devine)
o Sex and age of children
o Their emotional, social, moral, material, and educational needs
o Respective home environments offered by each party
o Characteristics of party seeking custody, including age, character, stability, mental and physical health
o Capacity and interest of each parent to provide for needs of children
o Relationship between children and respective parents
o Preference of child
§ KNOW FOR EXAM: In Alabama the child cannot simply pick which parent to live with
· AL: child can be called to testify as to their preference; not determinative
§ MN: Court is allowed to interview child in chambers to ascertain child’s preference
§ IL: Same as MN
§ GA, TX: A child over 14 may select the custodial parent as long as parent is fit
o Report and/or recommendation of any expert witness