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Moveaway Case Law
Ted A. Monroe and his wife Judith were divorced by the Marshall Circuit Court. That court gave the wife custody of their minor son, based on an agreement of the husband and wife. The father later petitioned for a change of custody, on the basis that the wife was moving to Michigan. The trial court modified its custody award so as to place the child with the father if the mother moved to Michigan. The Court of Civil Appeals reversed that custody modification. Mayhew v. Monroe, [Ms. 2961363, March 20, 1998] 1998 Ala. Civ. App. LEXIS 217, So. 2d (Ala. Civ. App. 1998). We granted the father's petition for certiorari review. We reverse the judgment of the Court of the Civil Appeals and reinstate the custody-modification order of the circuit court.
Ted Monroe and Judith Monroe (now Judith Monroe Mayhew) were married in 1985. Their son
was born in 1990. The father was allowed visitation at least 26% of the time. However, the
record indicates that before the father petitioned for a change of custody, the child was
spending at least half of his time with his father. The child has a very close
relationship with the extended family of his mother and with that of his father as well,
and all members of the child's extended families reside in the area of Marshall County,
where the child has been reared.
The mother informed the father in October 1996 that she would be moving to Michigan in
January 1997, taking a job there, and taking the child with her. On November 19, 1996, the
father petitioned the Marshall Circuit Court for a change of custody. According to the
mother's testimony at the hearing on the question of custody modification, she was at that
time working as a Federal employee at Redstone Arsenal, a facility of the United States
Army. She testified that she had been informed that her job at Redstone Arsenal was ending
and that there were several locations where she could take another job similar to her
current one -- Huntsville, Alabama; Columbus, Ohio; Battle Creek, Michigan, and a location
in Georgia. The mother testified that she had been told later that she was being
reassigned to Battle Creek, Michigan. The record indicates that at that time the mother's
boyfriend resided in Battle Creek, Michigan.
The father's modification petition asked that general custody be placed with him, given
that the mother had indicated she would be moving to Battle Creek, Michigan, and taking
the child with her. The court entered an order modifying the custody provision so that if
the mother moved to Michigan as she had planned, custody would be moved to the father,
subject to the mother's right to visitation.
The trial court reasoned that if the mother was allowed to take the child to Michigan,
then it was quite conceivable that the child's father and the child's extended families
would no longer be in close contact with him.
The child, according to the evidence presented, has an unusually close relationship with
his father and with the child's extended families, and the evidence indicated that a
sudden absence of contact with them could detrimentally affect him. The trial judge heard
evidence indicating that if the child moved to Michigan with his mother he would become
separated from everyone and everything in his life that he was familiar with, except his
mother.
In the modification proceeding, the trial court applied the standard set out in Ex parte
McLendon, 455 So. 2d 863, 865-66 (Ala. 1984):
"The positive good brought about by the modification must more than offset the
inherently disruptive effect caused by uprooting the child. The parent seeking the custody
change must show not only that [he or] she is fit, but also that the change of custody
'materially promotes' the child's best interest and welfare."
Judge Gullahorn granted the change of custody following an ore tenus proceeding. He
stated that the mother and the father were both exemplary parents, and he based his order
solely on the effects the mother's proposed move would have on the child. The mother
stated that if she had to choose between losing custody and staying in Alabama, then she
would stay in Alabama. The mother also testified that she could, but has not, sought other
employment in the same area.
In his modification order, the trial judge stated:
"It would be in the child's best interest to transfer custody to the [father] and ...
the benefits of remaining in close contact with the [father] and in close contact with the
members of [the extended families of the father and the mother] would, in fact, outweigh
the negative effects that [the] change of custody would have."
"The judgment of a trial court based on ore tenus evidence is
presumed correct, and its findings 'will not be disturbed on appeal unless they are
palpably wrong, manifestly unjust, or without supporting evidence.'" Anderson v. Lee,
621 So. 2d 1305, 1307 (Ala. 1993), quoting McCoy v. McCoy, 549 So. 2d 53, 57 (Ala. 1989).
In Raidt v. Crane, 342 So. 2d 358, 360 (Ala. 1977), this Court stated:
"It is axiomatic that where the evidence has been [presented] ore tenus, a
presumption of correctness attends the trial court's conclusions on issues of fact, and
this Court will not disturb the trial court's conclusion unless it is clearly erroneous
and against the great weight of the evidence, but will affirm the judgment if, under any
reasonable aspect, it is supported by credible evidence."
The record supports the trial court's determination that remaining in Alabama is in the
best interest of the child. The testimony of Dr. Roger Rinn, a licensed psychologist in
clinical practice in Huntsville, strongly supports the idea that it is important for this
boy's father to maintain an important position in his life during his childhood. Dr. Rinn
testified that fathers were "very important for sons in particular" and that by
being with his father a boy "learns how to be a male, an adult male." Dr. Rinn
also testified that boys who have close relationships with their fathers tend to have
higher academic achievement, tend to be more empathetic as adults, and tend to be more
compassionate toward others. Dr. Rinn concluded his testimony by stating that the more
time a male child is able to spend with his father, the more well rounded and better
adjusted that child would be. Thus, the trial court heard substantial evidence indicating
that the child would benefit by growing up in an area close to where his father lives, so
that the important relationship between father and son could be maintained.
The evidence indicated that after the parties were divorced, the mother married a second
time, and that her second marriage had also ended in divorce. Testimony given by the
father at the modification hearing indicated that the child had been confused during the
period just before the mother's second marriage and after that marriage had ended. The
father testified that before the mother's second marriage, the son had said to him,
"Daddy, ah, I'm getting me a new daddy," and that after the mother's second
marriage ended, the child told the father, "Daddy, Kevin [the second husband] has
left." This communication highlights the importance of his relationship with his
father, with whom he has a strong positive relationship. Dr. Rinn, the father's expert,
offered strong testimony suggesting the importance of the child's relationship with his
father.
Dr. David Wilson, also a licensed psychologist, testified for the mother. He had had two
40-minute sessions with the child, attempting to assess the child's psychological and
emotional state before the date of the custody-modification hearing. He testified that
both the mother and the child appeared to be psychologically stable. Dr. Wilson testified
that he thought the child was enthusiastic about moving to Michigan, because the child had
told him he was "excited about playing in the snow." Dr. Wilson also testified
that the mother and the child had a very close relationship and that the child was
emotionally dependent on his mother. Dr. Wilson offered no testimony concerning the
long-term effects the child might experience by moving away from his father and extended
families.
An appellate court may not substitute its judgement for that of the trial court. As the
Court of Civil Appeals stated in Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App.
1993), "To substitute our judgment for that of the trial court would be to reweigh
the evidence.
This Alabama law does not allow."
"In domestic relations cases a minor child has an inalienable right to the maximum
protection of the judiciary; all other rights are secondary." Ex parte D.W.W., 717
So. 2d 793, 796 (Ala. 1998). The trial court analyzed testimony given by various experts,
counselors, and family members and from that testimony determined that it was in the best
interest of the child to stay in Alabama close to his father and to the child's very
supportive extended families. We cannot say the trial judge's determination was clearly
erroneous or against the great weight of the evidence; its judgment was not plainly and
palpably wrong.
The judgment of the Court of Civil Appeals is reversed and the order of the Circuit Court
of Marshall County is reinstated. JUDGMENT OF THE COURT OF CIVIL APPEALS REVERSED; ORDER
OF THE CIRCUIT COURT OF MARSHALL COUNTY REINSTATED. Maddox, Shores, Houston, and See, JJ.,
concur.
Cook, J., concurs in result.
Kennedy and Lyons, JJ., dissent.
DISPOSITION
JUDGMENT OF THE COURT OF CIVIL APPEALS REVERSED; ORDER OF THE CIRCUIT
COURT OF MARSHALL COUNTY REINSTATED.
DISSENT
LYONS, Justice (dissenting).
I respectfully dissent.
When a noncustodial parent seeks to modify an existing custody determination, that parent
bears a heavy burden. He or she must prove that a material change in circumstances has
occurred since the last custody order, that a change in custody will materially promote
the child's best interests, and that the benefits of the proposed change in custody will
more than offset the inherently disruptive effects caused by the change in custody. Ex
parte McLendon, 455 So. 2d 863 (Ala. 1984); see Ex parte Johnson, 673 So. 2d 410 (Ala.
1994). In this case, the father had to meet the McLendon burden, and in my opinion, he did
not do so.
When the parties were divorced in 1993, they agreed that the mother was to be awarded
custody of the child born in 1990, who is now eight years old. The parties also agreed
upon certain specified visitation, under the terms of which the child spent approximately
25% of his time with the father. The record reflects that the mother accommodated the
father's desire to spend more time with the child than their agreement specified because
she knew the father missed the child. The mother also testified that when her job required
her to travel, she offered the father the opportunity to have the child stay with him
instead of with a babysitter, an opportunity the father accepted. The father testified
that under the informal arrangement between the parties, the child has spent approximately
50% of his time with the father and the father's family. Clearly, the mother's
encouragement and cooperation have enabled the father and his family to increase the
amount of time they have spent with the child. I note, however, that in Ex parte Bryowsky,
676 So. 2d 1322 (Ala. 1996), this Court stated that "although the nature of [such an
informal] arrangement and its impact on the child would be factors to be considered in
determining whether a transfer of custody ... would materially promote the child's [best
interests], the arrangement itself did not constitute a waiver on the mother's part of her
right to preference under the divorce judgment." 676 So. 2d at 1325.
The mother now wishes to move to Michigan. The record reflects that the father filed his
petition for modification shortly after the mother informed him of her proposed move. The
mother testified that the reason for her move is that her job at Redstone Arsenal is being
phased out and she will be required to move in order to continue her employment with the
United States Army. At the time of trial, the mother had worked for the Army at Redstone
Arsenal for 15 1/2 years. She said that in addition to allowing her to continue working
for the Army, the new job offered to her presented opportunities for greater employment
stability and advancement, and she said that the new job would not require her to travel.
The mother testified that when she first learned that her current job would be ending, she
was informed that the new job "could have ended up in several locations," one of
which was the Huntsville area. However, by the time the court held its hearing on the
father's modification petition, the mother had learned that the other locations had been
ruled out and that she definitely would have to move to Michigan in order to continue with
her present employment. As the majority notes, a positive aspect for the mother regarding
her proposed move to Michigan is that the man she plans to marry presently lives in Battle
Creek.
I see nothing in the record to indicate that the mother's plans to relocate were impulsive
or vindictive. On the contrary, the testimony reflected that she had researched the area,
had obtained information on schools and after-school care for the child, and had given
thought to ways in which the father's visitation schedule could be modified in order to
maximize the time the child would be able to spend with him. As the majority notes, the
mother also testified that if she has to choose between moving in order to keep her job
and quitting her job in order to retain custody of her child, she will quit her job and
stay in Alabama.
The trial court's order stated that the mother could retain custody of the child if she
stayed in Alabama, but that if she moved to Michigan, the child's custody would be
transferred to the father. The trial court stated that the benefits to the child of
remaining in close contact with his father and the parties' extended families would
outweigh the negative effects the change in custody would have. The Court of Civil Appeals
concluded that the father had failed to meet the burden imposed on him by McLendon, and it
reversed the trial court's order modifying the custody provisions of the divorce judgment.
In reversing the judgment of the Court of Civil Appeals, the majority states that the
record supports the trial court's determination that the child's best interests would be
served by remaining in Alabama. So. 2d at . I do not agree. Although in its opinion the
Court of Civil Appeals addressed the potential effects on the child caused by the change
in custody from his mother to his father, the trial court did not do so and the majority
of this Court has not done so in today's opinion. According to McLendon, those effects are
a vital consideration.
The psychologist retained by the mother, Dr. David Wilson, had met with the mother and the
child on two occasions. He testified that he asked to meet with the father, but that the
father declined to be interviewed. Dr. Wilson testified that, in his opinion, the child
was more attached to his mother "as far as meeting his actual emotional needs."
Dr. Wilson based his opinion, in part, on questions that he asked the child, such as who
he would want to take care of him if he were ill and who he would talk to if he really
needed to talk to someone about something. In both of those instances, Dr. Wilson stated,
the child said he would want his mother. Although Dr. Wilson testified that the
anticipated move to Michigan would have some disruptive effect on the child's life, he
also testified that the child brought up the subject of the move and that the child said
he was excited about the move, even though he said he knew his father would be sad. Dr.
Wilson did not say that he thought the child was enthusiastic about moving to Michigan so
that he could play in the snow. On the contrary, Dr. Wilson testified that the snow was
only one thing the child mentioned. Dr. Wilson also testified that, in his opinion, taking
the child away from his mother "would be very difficult and at least possibly
traumatic at this point."
On the other hand, the psychologist retained by the father, Dr. Roger Rinn, never met or
talked with either of the parents or with the child. His testimony was based entirely on
research data and current literature. Dr. Rinn testified that a relationship between a
child and his or her father is critically important, especially for a male child, and that
the father is the primary role model for boys. In addition to the other testimony noted by
the majority, Dr. Rinn testified that "taking the father out of the picture"
through a move is a problem; however, when asked about "taking the mother out of the
picture," he said that also was a problem. Dr. Rinn also testified that, in his
opinion, moving from one place to another was not psychologically disruptive to a child
"to any significant extent" and that a move could be an educational and growing
experience for a child.
The majority relies heavily on the fact that awarding custody of this child to the father
would allow him to remain "close to his father and to the child's very supportive
extended families." So. 2d . Nothing in the record, however, indicates that residing
in Michigan would mean that the child would forfeit his relationships with his father and
extended families. The record indicated that the mother's family members planned to visit
her if she moved and that the mother had thought about and considered ways she could
ensure that the child had ample opportunities to visit with his father.
The Court of Civil Appeals has decided several cases in which the facts were very similar
to the facts presented in this case. In those cases, the Court of Civil Appeals has held
that a change in the custodial parent's residence and the accompanying problems with
visitation, without other factors, do not justify a change in custody. See, e.g., Hall v.
Hall, 705 So. 2d 397 (Ala. Civ. App. 1997); Scacca v. Scacca, 694 So. 2d 1 (Ala. Civ. App.
1997); Moore v. Moore, 585 So. 2d 66 (Ala. Civ. App. 1991). As the court noted in Moore,
the custodial parent's change in residence is but one factor for a court to consider when
ruling on a custody-modification petition. I agree with the Court of Civil Appeals that
the custodial parent's change in residence alone is not sufficient to justify a
modification of custody. I believe, however, that cases such as these will continue to
present problems for both our trial courts and our appellate courts until this Court
develops criteria to guide judges in cases in which the noncustodial parent seeks to
modify a custody order because of the custodial parent's relocation.
Courts in other states have adopted criteria that I believe would prove helpful in Alabama
as well. For example, in D'Onofrio v. D'Onofrio, 144 N.J. Super. 200, 365 A.2d 27,
affirmed, 144 N.J. Super. 352, 365 A.2d 716 (App. Div. 1976), the New Jersey court held
that in relocation cases, in order "to accommodate the compelling interests of all of
the family members," a court should consider the following criteria:
"The prospective advantages of the move in terms of its likely capacity for improving
the general quality of life for both the custodial parent and the children. It must
evaluate the integrity of the motives of the custodial parent in seeking the move in order
to determine whether the removal is inspired primarily by the desire to defeat or
frustrate visitation by the noncustodial parent, and whether the custodial parent is
likely to comply with substitute visitation orders when she is no longer subject to the
jurisdiction of the courts of this State. It must likewise take into account the integrity
of the noncustodial parent's motives in resisting the removal and consider the extent to
which, if at all, the opposition is intended to secure a financial advantage in respect of
continuing support obligations. Finally, the court must be satisfied that there will be a
realistic opportunity for visitation in lieu of the weekly pattern which can provide an
adequate basis for preserving and fostering the parental relationship with the
noncustodial parent if removal is allowed."
144 N.J. Super. at 206-07, 365 A.2d at 27.1 The New York Court of Appeals
has adopted the following essentially similar criteria to be considered in relocation
cases:
"Each parent's reasons for seeking or opposing the move, the quality of the
relationships between the child and the custodial and noncustodial parents, the impact of
the move on the quantity and quality of the child's future contact with the noncustodial
parent, the degree to which the custodial parent's and child's life may be enhanced
economically, emotionally and educationally by the move, and the feasibility of preserving
the relationship between the noncustodial parent and [the] child through suitable
visitation arrangements."
Tropea v. Tropea, 87 N.Y.2d 727, 740-41, 665 N.E.2d 145, 151, 642 N.Y.S.2d
575, 581 (1996). See, also, Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998)
(adopting the Tropea criteria). The Ireland court recognized the difficult issues that
relocation cases present:
"The interests of the custodial parent who wishes to begin a new life in a new
location are in conflict with those of the noncustodial parent who may have a strong
desire to maintain regular contact with the child. At the heart of the dispute is the
child, whose best interests must always be the court's paramount concern."
246 Conn. at 421, 717 A.2d at 680. We have not yet adopted any such
criteria, however, so we must review the case before us under our familiar McLendon
standard for reviewing custody modifications.
According to the testimony, both parties are good parents and they love and care about
their son. The sole reason for the father's petition for modification was the mother's
proposed move to Michigan and the inherent difficulties in visitation such a move would
create. It follows, however, that changing custody from the mother to the father will
create those same difficulties for the mother. In addition, as the Ireland court
discussed, "requiring the custodial parent to [forgo] potential benefits of a
relocation, such as educational, employment or marriage opportunities, would deny the
child the correlative benefits of such opportunities, for example, increased financial or
emotional stability of the family unit." 246 Conn. at 431, 717 A.2d at 685.
Unfortunately, long-distance relationships have become a reality for many families.
Children move away from extended families for any number of reasons. With today's
technology, however, communication is possible in many ways, including electronic mail and
economical long-distance telephone plans.
Transportation options abound as well. These parents have put forth the effort necessary
to ensure that their child has a good relationship with both of them. The record reflects
no reason to doubt that they could continue to do that if the mother moves to Michigan.
I do not think the father has met the burden imposed on him by McLendon to show that
removing this child from his mother's custody would "materially promote" his
welfare and best interests. This Court should not put a parent who faces an employment
transfer, something that is becoming increasingly common, in the position of having to
choose between keeping a good job (and its attendant medical-care and retirement benefits)
and retaining custody of a child. I would affirm the judgment of the Court of Civil
Appeals.
Kennedy, J., concurs.
DISSENT FOOTNOTES
1 The D'Onofrio criteria quoted here have been specifically cited with approval or
essentially adopted by many of our sister states. See Pollock v. Pollock, 181 Ariz. 275,
889 P.2d 633 (Ariz. App. 1995); Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994);
In re Marriage of Chester, 907 P.2d 726 (Colo. App. 1995); Mize v. Mize, 621 So. 2d 417
(Fla. 1993), superseded by statute as stated in Bartolotta v. Bartolotta, 703 So. 2d 1229
(Fla. App. 1998); In re Marriage of Eckert, 119 Ill. 2d 316, 116 Ill. Dec. 220, 518 N.E.2d
1041 (1988); In re Marriage of Quirk-Edwards, 509 N.W.2d 476 (Iowa 1993); Yannas v.
Frondistou-Yannas, 395 Mass. 704, 481 N.E.2d 1153 (1985); Anderson v. Anderson, 170 Mich.
App. 305, 427 N.W.2d 627 (1988); Auge v. Auge, 334 N.W.2d 393 (Minn. 1983); Effinger v.
Effinger, 913 S.W.2d 909 (Mo. App. 1996); Trent v. Trent, 111 Nev. 309, 890 P.2d 1309
(1995); Stout v. Stout, 560 N.W.2d 903 (N.D. 1997); Gruber v. Gruber, 400 Pa. Super. 174,
583 A.2d 434 (1990); Fortin v. Fortin, 500 N.W.2d 229 (S.D. 1993); Taylor v. Taylor, 849
S.W.2d 319 (Tenn. 1993); Love v. Love, 851 P.2d 1283 (Wyo. 1993). New Jersey has modified
the criteria somewhat since 1976. See Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984);
Holder v. Polanski, 111 N.J. 344, 544 A.2d 852 (1988)
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