Appeal from Lee Circuit Court. (DR-90-372.02). Robert Harper, TRIAL JUDGE.
Released for Publication August 21, 1995.
L. Charles Wright, Retired Appellate Judge. All the Judges concur.
The opinion of the court was delivered by: Wright
WRIGHT, Retired Appellate Judge
This is an appeal from a modification of child custody.
The parties were married in 1988. They separated in March 1990. The child at issue was born in June 1990. The parties divorced in September 1990. The parties agreed that they would share "joint custody," with the mother having physical custody.
In May 1994 the father filed a petition for modification, seeking custody of the child. Following a pendente lite hearing, the father was awarded custody of the child. The same result followed the final hearing. The mother appeals.
The mother asserts that the trial court erred in awarding custody to the father.
Although the parties agreed to share custody of the child, the mother was awarded physical custody. The standard applicable in a modification of such a situation is that expounded in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). Hovater v. Hovater, 577 So. 2d 461 (Ala. Civ. App. 1990). The party seeking to modify a prior custodial decree bears the stringent burden of proving that the proposed change in custody will materially promote the child's best interests and welfare. The benefits of moving the child must outweigh the traumatic effects caused by uprooting the child from the present custodian. Ex parte McLendon.
The record reflects that both parties remarried in 1991. The mother and her husband have an additional child. The father and his second wife do not have any children.
During the weekend prior to the filing of the petition, the mother and her husband got into an argument. She left her husband and went to Georgia with a twice-convicted felon, who had been in and out of jail. She was picked up by the Georgia police for questioning. Apparently, the convicted felon had stolen guns.
The mother's husband filed a petition for divorce. On the same day that the father's petition to modify was filed, an order was entered in the husband's divorce action, restraining the mother from contacting, threatening, abusing, or intimidating their minor child. The husband offered an affidavit to support his request, in which he indicated that the mother disciplined the child too harshly, had an extremely short temper, and associated with a twice-convicted felon.
After the filing of the petition to modify, but prior to the hearing, the mother and her husband reconciled. At the time of the hearings they were seeing a marriage counselor.
The mother is handicapped and must use a wheelchair. She injured her spinal cord in a suicide attempt when she was 18 years old. She survives financially on Social Security benefits, child support, and income from her present husband. There was testimony that they had financial difficulties. There were numerous bills that were ...