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Watkins v. Lee

Alabama Court of Civil Appeals

January 6, 2017

Keevis D. Watkins
v.
Brianne Claire Lee

         Appeal from Morgan Circuit Court (DR-14-900194)

          PER CURIAM

         Keevis D. Watkins ("the father") appeals a judgment of the Morgan Circuit Court ("the trial court") granting a petition to establish paternity, custody, visitation, and child support that had been filed by Brianne Claire Lee ("the mother") regarding the parties' son and daughter (hereinafter referred to collectively as "the children"), who were born out of wedlock on October 12, 2007, and June 17, 2009, respectively.[1] The mother also has an older daughter from a different relationship ("the mother's daughter"). On appeal, the father challenges only one aspect of the trial court's judgment, namely, a provision permitting the mother to refuse the father's visitation if she believes that he is under the influence of drugs or alcohol or that he is placing the children in an unsafe environment or a place of danger ("the refusal provision"). We affirm.

         Background

         The mother filed her verified petition on May 6, 2014. Acting pro se, the father answered the mother's petition, and, after the trial court had ordered him to submit to genetic testing to establish his paternity of the children, the father later waived his right to undergo that testing and admitted his paternity; the trial court thereafter entered an order establishing the father's paternity. After obtaining representation, the father filed an amended and verified answer and participated in discovery; however, the trial court later granted the father's attorney's motion to withdraw, and the father thereafter continued to defend against the mother's petition pro se.

         The trial court conducted a trial on April 5, 2016, at which the mother, the father, and a private investigator who had been hired by the mother's attorney ("the private investigator") testified. On May 4, 2016, the trial court entered a judgment awarding the mother sole physical and legal custody of the children and including, among other things, the refusal provision. Regarding the father's visitation generally, the trial court stated: "The parties can mutually agree upon the visitation with the father, but if they cannot, the Morgan County visitation schedule ... shall govern." With the assistance of a new attorney, the father then filed a "motion for a new trial" on May 25, 2016, in which he argued that the refusal provision could impermissibly allow the mother to withhold visitation from the father based on her subjective beliefs that might not be supported by "any real proof." The trial court denied the father's postjudgment motion on June 10, 2016, and the father filed a notice of appeal that same day.

         Analysis

"'"The trial court has broad discretion in determining the visitation rights of a noncustodial parent, and its decision in this regard will not be reversed absent an abuse of discretion." Carr v. Broyles, 652 So.2d 299, 303 (Ala. Civ. App. 1994). In exercising its discretion over visitation matters, "'[t]he trial court is entrusted to balance the rights of the parents with the child's best interests to fashion a visitation award that is tailored to the specific facts and circumstances of the individual case.'" Ratliff v. Ratliff, 5 So.3d 570, 586 (Ala. Civ. App. 2008)(quoting Nauditt v. Haddock, 882 So.2d 364, 367 (Ala. Civ. App. 2003)(plurality opinion)). A noncustodial parent generally enjoys "reasonable rights of visitation" with his or her children. Naylor v. Oden, 415 So.2d 1118, 1120 (Ala. Civ. App. 1982). However, those rights may be restricted in order to protect children from conduct, conditions, or circumstances surrounding their noncustodial parent that endanger the children's health, safety, or well-being. See Ex parte Thompson, 51 So.3d 265, 272 (Ala. 2010)("A trial court in establishing visitation privileges for a noncustodial parent must consider the best interests and welfare of the minor child and, where appropriate, as in this case, set conditions on visitation that protect the child."). In fashioning the appropriate restrictions, out of respect for the public policy encouraging interaction between the noncustodial parents and their children, see Ala. Code 1975, § 30-3-150 (addressing joint custody), and § 30-3-160 (addressing Alabama Parent-Child Relationship Protection Act), the trial court may not use an overbroad restriction that does more than necessary to protect the children. See Smith v. Smith, 887 So.2d 257 (Ala. Civ. App. 2003), and Smith v. Smith, 599 So.2d 1182, 1187 (Ala. Civ. App. 1991).'
"[Pratt v. Pratt, ] 56 So.3d [638, ] 641 [(Ala. Civ. App. 2010)]."

B.F.G. v. C.N.L., [Ms. 2140771, March 11, 2016] ___ So.3d ___, ___ (Ala. Civ. App. 2016).

         As mentioned above, the father argues only that the trial court abused its discretion by including the refusal provision in its judgment without specifically defining the circumstances under which the mother can withhold visitation from the father. The only case the father has cited in the argument section of his appellate brief is H.H.J. v. K.T.J., 114 So.3d 36 (Ala. Civ. App. 2012), in which this court reversed a particular portion of a trial court's judgment that had effectively permitted a child to decide whether his father could exercise visitation. Noting that "the father ha[d] made some efforts to repair his relationship with the child, that the child was responding, and that the child was willing to try to have a relationship with the father, " we concluded that "[a]llowing the child to determine the timing of visitation with the father would not, given the facts, be in the child's best interests." Id. at 44.

         In response, the mother asserts the following in her appellate brief:

"[The mother] understands that visitation with the [f]ather is a fundamental right to the [f]ather. However, the [trial c]ourt can have restrictions on visitation but those restrictions must be tailored to meet the child's interests. Jackson v. Jackson, 999 So.2d 488 (Ala. Civ. App. 2007). The [c]ourts have allowed restrictions if the parent's conduct would endanger the child, if the parent has a history of neglecting or ignoring the child, violations of prior court orders regarding visitation or other good reasons relating to the welfare of the child may justify restrictions on the parent's visitation with his or her child. [1 Judith S. Crittenden & Charles P. Kindregan, Jr., ] Alabama Family Law[ § 13:3] (2016)."

         In its judgment, the trial court set out specific findings "as to why joint custody should not be granted, " several of which could also have been relevant to its inclusion of the refusal provision:

"(d) There is a history of domestic violence in the parties' home when they lived together.
"(e) There is a potential for kidnapping with respect to the father's threat of moving 'far, far away' and the father's checking the children out of school without notifying the mother regardless of who is exercising visitation at that time.
"....
"(g) The father's testimony before this court revealed he was more interested in his needs and wants than he was in the children's welfare."

         The refusal provision specifically provides:

"The mother has the right to refuse visitation of the father if, in her judgment, (1) the father appears to be under the influence of drugs or alcohol, or (2) the father appears to be placing the children in an unsafe environment or to be placing them in a place of danger."

         As previously stated, the father appeared pro se at the trial. After the mother had presented her case-in-chief, the trial court allowed the father to testify regarding any matter that he wished to address; much of the mother's testimony was generally disputed by him. The mother testified that she and the father had lived together from 2007 until 2013. Before they had begun living together, the father had been convicted of selling cocaine and had been incarcerated for two years. Regarding the children's health and safety while in the father's care, the mother specifically testified regarding a burn that the son had suffered on his arm and provided photographic evidence of the injury. She also noted that she had requested and obtained a pendente lite order from the trial court preventing the father from taking the children from Alabama. She offered the following explanation for that request:

"[The mother]: ... I had picked [the children] up from school one day, and the principal came to my car and asked if we were moving. I said, no, I'm not moving. I said, their dad might be moving. And they told me that [the son] told his teacher that he was moving far, far away. So I told the principal, no, they're not leaving this school. We drove off and I asked [the son] I said, why did you tell your teacher that, and he said that ...

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