A Primer for Navigating Potential Appellate Issues in Child Custody Cases
| Publication year | 2020 |
| Pages | 0040 |
Child custody cases rarely sail along smoothly. The trial lawyer can become so engulfed in what is at stake-important issues involving a child and families-that he finds it difficult to focus the other stages of the case. If he wins, is the case ready to withstand an appellate attack? Should he get a disappointing result, is the case postured for an appellate attack? Or-and often forgotten-is there a need for a pre-trial appeal?
In fact, the appellate side of these cases has become so complex that many trial lawyers use or retain appellate counsel to consult or to participate in the pre-trial or trial process.
My hope is that this article will chart an appellate-minded course for the journey that is child custody litigation.
Pre-Trial Mandamus
There are several issues which could prompt a petition for writ of mandamus to the trial court. Among them are recusal,1 pendente lite orders,2 venue,3 discovery,4 evidence,5 and jurisdiction (personal6 or subject matter7 ). The trial court's rulings on these issues are often interlocutory orders which prevent review by appeal. The only real option is a pretrial petition for writ of mandamus, pursuant to Rule 21, Ala. R. App. P.
It should be noted that mandamus is an extraordinary remedy which is not intended to be a substitute for appeal.8
In order to obtain the writ, a litigant must show a clear right to the relief sought.9 The lack of success on a petition for writ of mandamus is not a binding decision on the merits of the issue presented,10 and, in some cases, the issue can be raised on appeal.11
If mandamus is appropriate, however, resolution of some issues prior to trial can save resources by preventing the necessity of a re-trial.
In looking at subject matter jurisdiction, one must first determine whether Alabama is the proper forum under Alabama divorce law and the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA).12
In most cases, both parties and the child are residents of Alabama for a substantial length of time and interstate considerations are not implicated. However, if the parents live in different states, the six-month statutory residency requirement13 and/or the provisions of the UCCJEA determine whether Alabama is the correct state in which to resolve the dispute. A dispute regarding which state has jurisdiction may prompt a motion to dismiss, a motion for a stay, or a motion for the trial court to defer jurisdiction. Alabama is also in the minority of states which require personal jurisdiction over a party in order to validly effect or enforce a custody order.14 A trial court's preliminary rulings on these issues have been considered appropriate for mandamus review.15
A special venue provision applies to child custody modification cases. Venue for modification of an order is generally in the court which entered the previous order. However, a custodial parent with primary custody who has lived with the child (or children) in a different county for three consecutive years may choose (it is not mandatory) to file a petition or transfer a petition filed by an opposing party to the county of their residence.16
Pendente lite orders are of particular concern if an ex parte order is entered or if an order is issued without an evidentiary hearing. For example, the Alabama Court of Civil Appeals reversed the entry of a pendente lite custody order because the notice requirements of Rule 65(b), Ala. R. Civ. P., were not met.17 In another case, the Alabama Court of Civil Appeals, on due process grounds, overturned a pendente lite custody order because the trial court heard only argument from the child's guardian ad litem and did not provide an opportunity for an evidentiary hearing.18
Though petitions for writ of mandamus begin at the Alabama Court of Civil Appeals,19 the non-prevailing party may file a similar petition with the Alabama Supreme Court within 14 days.20 A party may file an application for rehearing with the court of civil appeals, but, in that event, review must be sought by petition for writ of certiorari.21 Applications for rehearing and petitions for writ of certiorari are discussed below in more detail.
Burden of Proof
It is important to recognize that the burden of proof and the scope of review are not interchangeable concepts.22 The burden of proof is what level of proof you must meet in order for the trial court to rule in your favor. The scope of review establishes the degree of deference the appellate court gives the trial court. Understanding each of these concepts is vital.
Fortunately, only two burden-of-proof standards cover most custody cases.
The first is the "best interest of the child" standard. It applies in initial custody determinations, in cases in which dependency is established, and in modification cases where the order being modified grants the parties joint physical custody with approximately equal periods of custodial time.23 This is often referred to as the Couch standard.24
Cases which involve prior custody orders granting primary physical custody to one parent or the other fall under the "material promotion" standard, which provides that the parent seeking modification must show that a change in custody will materially promote the best interest of the child such that the positive benefits of the proposed change will outweigh the inherently disruptive effects caused by uprooting the child. This is often referred to as the McLendon standard.25
Different standards and different burdens of proof apply to attempts by a third party to obtain custody from a parent, and to cases involving the termination of parental rights. When a third party attempts to gain custody from a parent, the third party has the burden of proving by clear and convincing evidence that a parent is unfit in order to be awarded custody of the child.26 When a party seeks to terminate parental rights, that party must prove their case by clear and convincing evidence, but they have a multiplicity of complicating factors to take into account.27
When someone has custody of a child and wants to relocate more than 60 miles within Alabama or to a location outside of Alabama, the Alabama Parent-Child Relationship Protection Act28 establishes shifting burdens. It begins with a rebuttable presumption that the relocation is not in the best interest of a child, and the burden is on the parent who desires to relocate to overcome this presumption. If that parent is able to overcome that presumption, then the burden shifts to the responding parent to prove that the move is not in the child's best interest.29 Becoming familiar with which burden of proof applies and directing your presentation to the trial court accordingly can greatly enhance the chances of success in defending or challenging the trial court's custody order. The differences between the burdens of proof in cases governed by Couch and McLendon are stark. In fact, if the applicable standard is in doubt, it might be advisable to obtain a ruling by the judge prior to trial regarding which burden of proof governs the matter before the court.
Scope of Review
In general, custody cases fall under the ore tenus rule: when there is a dispute in oral testimony, the resolution of that dispute by the trial court is entitled to a presumption of correctness on appeal. Custody decisions based upon ore tenus testimony are generally reversed only when the appellant can demonstrate an abuse of discretion by the trial court. In the custody context, this rule makes the trial court's custody decision extremely difficult to reverse on appeal...
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