L.S. v. A.S.

272 So.3d 169

L.S.

v.A.S.

2160987

Court of Civil Appeals of Alabama.

June 8, 2018

Certiorari Denied September 14, 2018

Alabama Supreme Court 1170888

Erin Atkins of The Atkins Firm, P.C., Huntsville, for appellant.

Submitted on appellant's brief only.

THOMPSON, Presiding Judge.

L.S. ("the mother") appeals from a judgment of the Morgan Juvenile Court ("the juvenile court") granting the request of A.S. ("the father") to transfer primary physical custody of I.S., the parties' child ("the child"), from the mother to the father. The juvenile court also found the mother in contempt for five separate acts. The mother was sentenced to serve five days in prison for each act of contempt. However, the juvenile court suspended the mother's sentences, placing her on two years of unsupervised probation for each act with each sentence running consecutively.

This action began less than two weeks after the juvenile court entered a judgment adjudicating the paternity of the father. That judgment was entered on May 16, 2016. On May 25, 2016, the father received a certified letter from the mother informing him of the mother's intent to relocate with the child to Hawaii as of July 2, 2016. On June 15, 2016, the father filed an objection to the mother's proposed move and sought custody of the child. The juvenile court held a hearing on the father's objection on July 5, 2016. At the outset of that hearing, the father's attorney made clear that custody was not at issue at that point because the parties had not even engaged in discovery yet. The hearing was held on the issue of the mother's proposed move, and the father sought visitation with the child at that time.

At the July 5, 2016, hearing, the father testified that, once his paternity had been adjudicated, the mother would not allow him to visit with the child except in public, in her presence. The mother and the father have never been married. When the child was born, the father said, he saw the child every day for the first two weeks. From then on, he said, he was able to see the child when the mother "felt it was appropriate for me to see him." The father was able to exercise unsupervised and overnight visitation with the child before his paternity was adjudicated but not afterward.

The mother, who appeared at the July 5, 2016, hearing pro se, told the juvenile court that she did not intend to move to Hawaii without the express written consent of the court. The mother's letter to the father regarding the move was admitted into evidence at that time. In the letter, the mother stated, "[t]here are several reasons for the move but the main reason is the inconsistent weather in Alabama, support, and health." The mother stated that she had "established an apartment in my previous state of residence located in Hawaii," where, she said, she had lived for four years while serving in the military and where she had graduated from college.

At the July 5, 2016, hearing, the mother testified that she was estranged from her parents. Regarding her support group, the mother said that her "shipmates" in Hawaii "are family to me [more] than anybody here." She also stated that she needed to move to Hawaii because, she said, the child and she both have allergies. She said that Hawaii "would be an awesome place to raise my son." She told the juvenile court that she had been approved for Section 8 government-subsidized housing in Hawaii even though she had not lived there in four years. The mother also told the juvenile court that another reason for her decision to move to Hawaii was that she was "going through counseling" "for a possible rape in the area." She added that she and the child needed a fresh start.

The juvenile court stated that the child and the father had a right to have a relationship and that it had not heard sufficient reason to justify the mother's request to move with the child to Hawaii. The juvenile court also awarded the father graduated visitation with the child, gradually increasing their time together so that the father would have standard visitation by the first weekend in September 2016.

Subsequent to the trial court's decision that the mother could not move to Hawaii with the child, an evidentiary hearing on the issue of custody was held over two days in January and April 2017. During the custody hearing, the father said that, when he had the child for visitation periods, the mother constantly texted him or called him on the telephone to check on the child. She acknowledged that she often called or texted the father when he had the child because, she said, "a mom's job is to know where her kid is and to know that they're okay and that they're surrounded by good people." She said that, on one occasion, the father went "approximately two hours" without letting her know of the child's location and that, on that occasion, she had the police check on the child. The mother also said that the child and the father had spent the night at another woman's house and that the child was not familiar with that woman. She conceded that she "went to the cops" on that occasion, as well. The mother also admitted to another instance when she drove past the father's mobile home when the father had the child for visitation. She said that she drove to the father's mobile home and texted the father, asking if she could see the child. When the father would not show her the child, she said, she "took a picture of the trailer to know where my son was and drove off." Furthermore, the mother acknowledged that she notified the Department of Human Resources ("DHR") regarding safety concerns she had regarding the father while the child was in his care. The mother said that she did not formally file charges against the father with DHR.

The mother testified that she has an associate's degree in finance and business management, a bachelor's degree in business management, a master's degree in business management, and had begun work on a doctoral degree in accounting but was not pursuing that degree at the time of the hearing. She characterized the father as a "deadbeat" because, she said, he went five months without paying her child support. She said that she was not sure whether that was before or after his paternity was established. Evidence was presented indicating that, before the adjudication of paternity, the mother intimated to the father that the child was not his and suggested other possibilities as to who the father might have been. The father explained that his daughter, who was not much older than the child, and he were attached to the child, and so, when the mother intimated that he might not be the father of the child, he began to withdraw, in case another man was found to be the child's father. (A DNA test conducted before the adjudication of paternity indicated that the father was, in all likelihood, the child's father.) Regardless, the evidence is undisputed that, by the last day of the custody hearing, the father's child-support payments were current.

The mother said that she has asked the father to "sign his rights over" to her because of the lapse in support payments and because, she said, "I just don't think he's a good role model." She said that she thought of the father as a "deadbeat" because, she said, he had had multiple arrests for driving under the influence ("DUI") of alcohol and because, she said, he had allowed the child to be scratched by a cat 27 times in one incident.

Photographs of the child's foot and lower leg showing the cat scratches were admitted into evidence. The photographs depict scratches; they do not indicate bite marks or anything extraordinary. The father told the mother that the cat, a tabby who was 11 months old in April 2017, scratched the child when the child stepped on its tail. The father said that he had warned the child several times not to step on the cat before the incident. After the incident, the father said, the child no longer tried to step on the cat. He also said that the child was in the living room when the incident occurred, and that he was in the kitchen, but that he was able to observe the child from the kitchen. The mother accused the father of allowing the child to be near a "wild" cat unsupervised.

The father acknowledged that he had had at least one DUI resulting in a suspended driver's license. By the last day of the hearing, the father said, his license had been reinstated. However, he said, he was still on probation and still had fines to pay. In the July 2016 order granting the father visitation with the child, the juvenile court had ordered that the father could not drive the child until he had obtained a valid driver's license. The order also listed the names of three individuals whom the mother found acceptable to transport the child to and from custody exchanges. If one of those people were not available to drive, the order stated, the father was to notify the mother of who would be transporting the child. The mother testified that, on one occasion, the father sent her a message saying that none of the people listed in the order as possible drivers was available, so she denied him visitation, explaining that the father did not tell her who would be driving.

The father testified that the father of one of the people on the list had died and so two of the people on the list were unable to drive him to make that weekend's custody exchange. He said that he explained the situation to the mother, who, he said, told him: "I won't be bringing [the child] to your today." When the father asked the mother what he could do to rectify the situation, the mother replied by a text message, stating: "We are past that point. I am very busy. Thank you." The father said that he went to the designated location where the exchange was to take place but that the mother and child did not appear.

The father said that, on another occasion, the mother was two and a half or three hours late for the first custody exchange. The father said that he asked the mother if...