Tuesday, January 24, 2006

Case Law Development: Necessity of Specific Findings When Court Awards Custody to Parent Despite Domestic Violence

While upholding the trial court's custody decision, the Alabama Court of Appeals debated the need for its Supreme Court or legislature to require specific findings when a court grants custody to a parent despite evidence of that parent's domestic violence.

This case involved significant allegations of abuse by Father, including several instances of abuse toward Mother, an incident in which neighbors saw him strike Mother's six-month-old child in the mouth and several instances of cruelty to family pets.  Mother, on the other hand, had suffered a nervous breakdown and been hospitalized (she alleged this was due to the abuse) and there was testimony that she had not kept the children clean.  The trial court findings noted that there was evidence of "skirmishes" between the parents and between husband and his stepchild, but found there was no evidence the child at issue in this case had been abused.  The court also noted that mother was unemployed, had four other children to care for and was "careless in her requirements concerning education and personal hygiene."

Given the significant deference Alabama court are required to give to ore tenus evidence, the Court of Appeals affirmed.  The court concluded that, while the Alabama custody statute creates a rebuttable presumption against granting custody to the perpetrator of domestic violence, the trial court's order could have been based on the court's conclusion that no domestic violence had occurred or that, despite that violence, the child's best interest required custody with Father.

Three justices specially concurred, debating whether the Supreme Court or legislature should amend the rules regarding custody in domestic violence situations to require that trial courts make specific findings regarding the presence of domestic violence and the specific reasons for granting custody to the perpetrator of that violence.

Lamb v. Lamb, 2006 Ala. Civ. App. LEXIS 20 (January 20, 2006) bgf

http://lawprofessors.typepad.com/family_law/2006/01/case_law_develo_27.html

Child Abuse, Custody (parenting plans) | Permalink

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