Keevis D. Watkins
Brianne Claire Lee
from Morgan Circuit Court (DR-14-900194)
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. 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.
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.
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.
"'"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.
"[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).
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.
response, the mother asserts the following in her appellate
"[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]
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
"(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."
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."
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 ...