Legal Memorandum: Custody Determination in AL

Issue: Under Alabama law, may the Circuit Court’s award of physical custody of the parties’ minor child to a parent despite uncontroverted evidence of a history of domestic violence, drug use, theft, and unfitness on the part of that parent, be considered to be against the best interests of the child?

In an ordinary case, the decision of the trial court is afforded a presumption of correctness, even in the absence of specific findings of fact. Ex parte Fann, 810 So. 2d 631, 633 (Ala. 2001). This presumption is supported by several important prudential considerations.  Notably, “‘[b]ecause the trial court has the advantage of observing the witnesses’ demeanor and has a superior opportunity to assess their credibility, [the appellate] Court cannot alter the trial court’s judgment unless it is so unsupported by the evidence as to be clearly and palpably wrong.'” Id. (quoting Ex parte D.W.W., 717 So. 2d 793, 795 (Ala. 1998)). Stated another way,

[w]hen evidence in a child custody case has been presented ore tenus to the trial court, that court’s findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination—it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing.”

Washington v. Washington, 24 So. 3d 1126 (Ala. Civ. App. 2009) (emphasis added).

If a witness refuses to appear at a hearing, this changes the matter.  See McCaskill v. McCaskill, 104 So. 3d 186, 193 (Ala. Civ. App. 2012) (“This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This […]