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M.D. v. E.F.

Alabama Court of Civil Appeals

June 14, 2019

M.D.
v.
E.F.

Page 895

          Appeal from Jefferson Juvenile Court (CS-14-900450.01)

          Traci Owen Vella of Vella & King, Birmingham, for appellant.

         Submitted on appellant's brief only.

         MOORE, Judge.

         M.D. ("the mother") appeals from a judgment entered by the Jefferson Juvenile Court ("the juvenile court") in a custody-modification case initiated by E.F. ("the father"). We affirm the judgment in part and reverse it in part.

         Procedural History

         On March 26, 2015, the juvenile court entered a judgment, based on an agreement between the parties, establishing the father's paternity of V.F. ("the child"), awarding the parties joint legal custody of the child, awarding the mother "primary" physical custody of the child,[1] and awarding the father visitation with the child.

         On March 2, 2017, the father filed a verified petition for a modification of the custody of the child and requesting that the juvenile court hold the mother in contempt for interfering with his visitation rights. On March 22, 2017, the father amended his petition to include requests to hold the mother in contempt on multiple new bases. On April 5, 2017, the mother answered the petition. That same day, the mother filed a motion requesting that a guardian ad litem be appointed for the child; that motion was granted on April 6, 2017, with the mother being ordered to pay $ 900, and the father being ordered to pay $ 600, toward the guardian ad litem's fee. Also, on September 20, 2017, the juvenile

Page 896

court entered an order stating: "Upon this Court's own motion, [an in] camera interview with the minor child will take place on September 25, 2017 @ 13:30 pm in courtroom 540."

         After a trial that was held over several days, the juvenile court entered a judgment on August 9, 2018, awarding the parties joint legal custody of the child, awarding the father "primary" physical custody of the child,[2] and awarding the mother supervised visitation with the child. The juvenile court further stated that, "once the [child's] therapist has cleared it, the mother shall have standard visitation." On August 19, 2018, the mother filed a postjudgment motion. The father filed a postjudgment motion on August 23, 2018. On August 28, 2018, the juvenile court amended the judgment and specifically stated that the contempt issues were moot. On September 5, 2018, the mother filed her notice of appeal to this court.

         Discussion

         On appeal, the mother first argues that the juvenile court erred in modifying the custody of the child and in ordering her visitation to be supervised. We note, however, that on September 20, 2017, the juvenile court entered an order for an in camera interview with the child to take place on September 25, 2017. Moreover, at the May 16, 2018, trial proceedings, the juvenile court indicated that it would be conducting another in camera interview of the child. The record does not, however, contain a transcript of either of those interviews. "In the absence of a transcript of an in camera interview with a child, a reviewing court must assume that the evidence the trial court received during that interview is sufficient to support that court's judgment." J.S. v. L.M., 251 So.3d 61, 68 (Ala. Civ. App. 2017). Accordingly, we must affirm the juvenile court's judgment with regard to the modification of custody and the requirement that the mother's visitation be supervised.

         The mother next argues that the juvenile court erred in giving the child's therapist the authority to determine the mother's visitation rights. We note that the juvenile court's judgment, as amended, provides, in pertinent part: "[T]he Mother's visitation shall remain supervised until the therapist is of the opinion to move forward from supervised to unsupervised. ...


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