Ex Parte J.G.
B.G. In re: J.G.
Tuscaloosa Circuit Court, DR-14-900003.01; Court of Civil
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
QUASHED. NO OPINION.
Parker, C.J., and Shaw, Bryan, Mendheim, Stewart, and
Mitchell, JJ., concur.
Wise, and Sellers, JJ., dissent.
("the mother") petitioned this Court for a writ of
certiorari to review the Court of Civil Appeals' decision
affirming the judgment of the Tuscaloosa Circuit Court
("the trial court"), which modified custody of two
children born of her marriage to B.G. ("the
father"). Because I believe the guardian ad litem
exceeded his authority in filing a petition for custody in
this matter, I dissent from quashing the writ.
and Procedural History
parties are both German citizens; they were married in 2007
in Germany. Two children were born of the marriage in 2007
and 2010, respectively. In 2010, the parties moved to the
United States. In 2013, the mother learned that the father
had hired prostitutes, and on January 5, 2014, the mother
filed for divorce. On February 25, 2014, the parties entered
into an agreement pending their divorce, which provided, in
pertinent part, that the parties would have joint legal
custody of the children, with the mother having sole physical
custody. The agreement further provided:
"INTERNATIONAL VISITS: Both parents and children are
German citizens and have family and friends in Germany. When
planning international travel both parents agree to inform
the other of their intent to visit and the dates the visits
are to take place, within fifteen (15) days of the scheduled
visit, unless the visit is due to an unforeseen emergency,
such as a family death. The children's passports will be
readily available to the parent making the visit. The visit
shall not interfere with regular school attendance, unless
the visit is of an emergen[cy] nature, such as a family
death. Further, any non-custodial weekend visit missed by the
Father shall be made up at his request on weekends that the
children would normally be scheduled with the Mother."
17, 2014, the trial court adopted the parties' agreement
as a pendente lite order. The order provided that the parties
were to work together to keep the children's German
passports and other travel documentation valid and also gave
the mother 30 days to vacate the marital residence.
23, 2014, the police were called to the marital residence
while the mother was moving out. The father was arrested for
domestic-violence harassment, a violation of §
13A-6-132, Ala. Code 1975.
30, 2014, the mother's attorney notified the father's
attorneys that the mother had learned of the terminal illness
of an immediate family member requiring surgery, and she
wanted to take the children to Germany. The mother's
attorney considered the relative's impending death an
emergency pursuant to the parties' pendente lite
agreement. The attorney stated that the children would be
returning to Tuscaloosa before school started. Also on July
30, 2014, the father filed a "Verified Petition for
Contempt and Objection to the Plaintiff's move to Germany
under the Alabama Relocation Act and Ex Parte Motion for an
order enjoining the parties from removing the minor children
from the State of Alabama Pending a final hearing." On
August 18, 2014, the trial court appointed a guardian ad
litem for the children.
August 19, 2014, the mother and the children went to Germany.
On September 10, 2014, the trial court ordered the mother to
return with the children to Tuscaloosa by October 3, 2014,
and, in the event that they did not return, the trial court
ordered the mother to appear and to show cause why she should
not be punished for failing to comply with the order. The
mother's counsel appeared at a hearing on the show-cause
order held on October 6, 2014. On October 15, 2014, the trial
court issued a writ of arrest for the mother based on her
failure to appear. On December 18, 2014, the trial court
recalled its writ of arrest after the mother and children
returned from Germany. While the underlying divorce action
was pending, the guardian ad litem filed a motion asking the
court to order that the children undergo psychotherapy,
requesting that Dr. Kathy Ronan be appointed as the
March 16, 2015, the mother notified the father that she
intended to relocate to Germany if she was awarded permanent
custody of the children. On March 27, 2015, the father filed
a verified objection to the mother's proposed relocation
to Germany. He asked the court to grant him custody of the
children pending a final hearing on the parties' divorce
21, 2015, the guardian ad litem filed a motion to release
funds for an expert witness. In his motion, the guardian ad
litem noted that the trial court had a hearing scheduled for
August 3, 2015. The guardian ad litem asked to be allowed to
use funds paid into his trust account by the father to pay
for the testimony of Dr. Ronan at the hearing regarding the
issues of custody and visitation.
August 3, 2015, the trial court held a hearing on the pending
motions. The trial court stated that no final judgment had
been entered in the divorce proceeding and that the court
intended to adopt the parties' settlement agreement as a
final judgment. The trial court stated that it was denying
without prejudice anything filed in the original divorce
proceeding. The trial court stated: "So, the parties can
pursue anything they want to pursue that they have filed in
the original case number that's denied without prejudice
and you can petition the Court in another action or enforce
or whatever you intend to do." The trial court then
stated that the mother's request to relocate and the
father's objection to her relocation would remain
pending. The court then heard testimony from the mother
regarding her relocation request. The trial court ended the
hearing before the mother had presented all of her evidence
regarding relocation. The trial court stated that the hearing
would be reset to allow the mother to call Elizabeth
Obradovich, a family friend, to testify.
August 7, 2015, the trial court entered a final judgment of
divorce. The final judgment provided that the parties would
share legal custody of the children and that the mother would
have sole physical custody. The father did not file any
postjudgment motions, nor did he appeal from the final
judgment of divorce.
October 16, 2015, the guardian ad litem filed a petition to
modify custody, alleging that the mother had engaged in
"programming" and "parental alienation"
of the children. The guardian ad litem asserted that the
alienation had resulted in "traumatic abuse" such
that it was a material change in circumstances and that the
father should be awarded custody. The guardian ad litem's
motion was based on a report filed by Dr. Ronan in July 2014
with the Tuscaloosa County Department of Human Resources
("DHR"). The guardian ad litem requested an
emergency hearing on his motion. On November 17, 2015, the
father filed a verified response to the guardian ad
litem's petition and asked the court to set the petition
for a hearing at the earliest possible date.
November 18, 2015, the father filed a motion seeking to
enjoin the mother from taking the children to any
mental-health professional other than Dr. Ronan. The father
stated that the mother had indicated that she intended to
seek a second expert opinion for the purposes of litigation.
November 23, 2015, the mother filed a response to the
father's motion regarding psychotherapy and also moved to
terminate the order requiring the children to undergo
psychotherapy with Dr. Ronan. The mother attached letters
from the children's pediatrician, who stated that the
children are under a great deal of stress because of the
divorce and that their symptoms have not improved, despite
months of counseling with Dr. Ronan. The pediatrician
suggested that they see a child psychologist or child
psychiatrist. The pediatrician noted that the children would
benefit from talking with a psychologist or psychiatrist who
speaks German, since that is the children's native
language and the language spoken at home and the children
often struggle with finding the right words in English when
trying to explain things.
December 8, 2015, the trial court held a hearing on "the
request for emergency relief filed by the [guardian ad
litem]." The trial court noted that it was not a final
hearing and that the court was allowing only "one
witness per party." The guardian ad litem called Dr.
Ronan to testify. She testified that DHR had received a
report that the father had sexually abused one of the
children and had physically abused the other child. According
to Dr. Ronan, DHR investigated the sexual-abuse report and
found that it was not indicated. Dr. Ronan testified that she
believed that, at a meeting in May 2014 with the guardian ad
litem and the court-appointed therapeutic mediator, the
mother was engaging in parental alienation and programming.
However, Dr. Ronan opined that at that time the parental
alienation and programming was "moderate."
Ronan testified that, based on literature regarding parental
alienation, she believed the parental alienation and
programming had increased. Dr. Ronan said that she made a
report to DHR that the mother's parental alienation had
become emotionally abusive for the children. Dr. Ronan stated
that the guardian ad litem had relied on her opinion
regarding traumatic parental alienation along with his own
evidence and information in arriving at the belief that the
mother was engaging in abusive parental alienation. The trial
court stated that it did not have enough time for the
mother's expert witness.
December 11, 2015, the trial court entered an interim order
noting that, because of the limited amount of time available,
the court could not complete the hearing on the guardian ad
litem's petition for "temporary modification of
child custody." The court scheduled a hearing for
January 28, 2016, to allow testimony from the mother's
January 28, 2016, the trial court heard testimony from the
mother's expert, Dr. John Goff, a clinical psychologist,
who opined that Dr. Ronan's records were insufficient on
which to base a determination of parental alienation. He
stated that an examination of the children alone would be
insufficient to arrive at such a determination and that both
parents have to be evaluated as well.
trial court stated: "[Guardian ad litem], this is your
petition, what is it you're requesting the Court do on an
emergency basis?" The guardian ad litem asked the court
whether the parents should be evaluated for the purposes of
determining whether there had been parental alienation. The
trial court asked if that would involve evaluation of the
children and the guardian ad litem said that he thought it
would. The trial court did not order any evaluations. The
father's counsel asked to present a witness, which the
trial court allowed. The father called a DHR caseworker, who
testified that DHR's investigation had indicated that the
children were being emotionally abused by the mother. On
cross-examination, the caseworker admitted that Dr. Ronan
made four pages of corrections and additions to the DHR
report resulting from the investigation.
April 11, 2016, the guardian ad litem filed a second petition
to modify custody, requesting that the father be awarded
physical custody of the children and the mother be awarded
supervised visitation. The guardian ad litem again requested
an emergency hearing on the motion.
April 20, 2016, the mother responded to the guardian ad
litem's petition to modify custody and filed a petition
asking that the father's visitation be supervised. That
same day, the father filed a motion to strike the
mother's counterpetition insofar as it requested that the
father's visitation be supervised.
22, 2016, the trial court held a hearing "for
continuation of trial." The court noted that the
testimony from August 3, 2015, December 8, 2015, and January
28, 2016, would all be considered "as part of the
testimony in the case." The trial court stated that it
was starting with testimony regarding the mother's
relocation request. The trial court heard testimony from
Elizabeth Obradovich, Silke Suhr, and Inga Herrmann, family
friends who had observed the children and the parents
the mother presented her witnesses, the trial court stated:
"I'm not sure I did this on the record, for purposes
of the record, the process we talked about or came up with on
May 2nd attorney conference was as follows: The [mother]
would finish the relocation issue. [The guardian ad litem]
would present his custody modification. The [father] would
respond to the relocation custody modification issues and
present his counterclaim. The [mother] would respond to the
[guardian ad litem's] custody modification and
[father's] petition. [The mother] to present her petition
to modify custody. [The father] and [guardian ad litem] to
respond. So, we're on the second phase. [Guardian ad
litem] to present custody modification."
guardian ad litem presented testimony from a teacher at the
children's school. He recalled Dr. Ronan to testify. The
guardian ad litem called the father to testify. The trial
court was unable to complete the hearing due to time
19, 2016, the court continued the hearing. The mother
testified. The father presented the testimony of a supervisor
at DHR. At the end of that hearing, the trial court asked the
guardian ad litem, the mother, and the father to submit
written summaries of their positions.
September 13, 2016, the trial court entered a final judgment,
"This matter is before the Court on various petitions
filed by the Mother, the [guardian ad litem], and the Father;
"The trial of these issues occurred over several days
over course of approximately one year, with the final day of
trial occurring on July 19, 2016 (the attorneys for the
parties were requested to, and they did, submit post-trial
arguments for the court's consideration)....
"Based upon the evidence presented, the Court makes the
following findings and enters the following orders.
"(1) This case has a long and complex history beginning
with the parties' original filing for a divorce in this
Court on January 5, 2014.
"(2) Although there was certainly a great deal of
animosity and indecision by and between the parties, this
Court ultimately entered a final decree of divorce on August
7, 2015. The final decree adopted the terms of a mediated
settlement as part of the order. No appeal was taken from the
entry of said final decree.
"(3) The final decree provided that the parties would
share legal custody of the children and that the Mother would
be designated sole physical custodian.
"(4) The primary issues presented to the Court are:
"(A) The Mother's request to relocate the physical
residence of the children to Germany.
"(B) The Guardian Ad Litem's petition for
modification of custody of the children.
"(C) The Father's petition for modification of
custody and for contempt and other relief.
"(D) The Mother's petition for modification of
"(5) By virtue of the fact that the Mother was
designated the sole physical custodian of the children, any
requests for modification of physical custody must meet the
heavy burden as set forth by the Alabama Supreme Court in
Ex parte McLendon, 455 So.2d 861 (Ala. 1984).
"(6) Pursuant to the Alabama Parent-Child Relationship
Protection Act, after the Father objected to the Mother's
proposed relocation of the children to Germany, the Mother
must show that such a move would ...