Cockrell v. Sittason
| Decision Date | 03 December 1986 |
| Citation | 500 So.2d 1119 |
| Parties | Carey T. COCKRELL and Marjorie P. Cockrell v. Douglas R. SITTASON. Civ. 5506-X. |
| Court | Alabama Court of Civil Appeals |
Albert P. Brewer of Brewer, Lentz, Nelson & Whitmore, Decatur, for appellant.
Steven E. Haddock of Hardwick, Knight & Haddock, Decatur, for appellee.
This is a child custody modification case.
The parents were divorced in June 1984. Custody of the two minor children, now ages seven and five, was awarded to the mother. Liberal visitation privileges were granted to the father.
Prior to and subsequent to the divorce, the mother had been seriously ill with cancer. The illness caused her to undergo treatments and to be hospitalized for periods of time. During these periods the maternal grandparents spent considerable time with the children. In August 1985 the mother died, and since that time the father has had physical custody of the children. In September 1985 the grandparents filed a petition, requesting legal custody of the children or, in the alternative, liberal visitation privileges.
After an ore tenus hearing, the trial court awarded custody of the minor children to the father, subject to visitation rights of the grandparents. The grandparents appeal. The father cross-appeals. We affirm.
In a child custody case the primary concern is the best interests and welfare of the child. Price v. Price, 440 So.2d 1110 (Ala.Civ.App.1983). To that end the trial court has discretion in both awarding custody and establishing visitation. Therefore, the trial court's determination of these matters will not be disturbed absent a showing of a clear abuse of that discretion. Price, 440 So.2d at 1110.
Moreover, in a child custody case in which the evidence was presented to the trial court ore tenus, that court's determination is presumed correct and will not be overturned unless it is so unsupported by the evidence that it is plainly and palpably wrong or an abuse of that court's discretion. Grimwood v. Grimwood, 465 So.2d 1167 (Ala.Civ.App.1985).
The grandparents contend that the trial court erred in awarding custody to the father. We disagree. The standard to be applied in this case is that applied by the Alabama Supreme Court in Ex parte Terry, 494 So.2d 628, 632 (Ala.1986):
"
See also Ex parte Mathews, 428 So.2d 58 (Ala.1983); Ex parte Berryhill, 410 So.2d 416 (Ala.1982), cited in Ex parte Terry.
In the present case, the father has not been found to be unfit. Rather, the trial court found that the father is providing a stable home for his daughters. Likewise, there has never been a prior decree awarding custody to a nonparent. " '[W]hen a decree awards custody to one parent, without a finding that the noncustodial parent is unfit, then the noncustodial parent [should] not [be] deprived of his prima facie right to custody, except as against that custodial parent.' " Terry, 494 So.2d at 633 (brackets in Terry ). Put another way, in addition to the father's not being found "unfit," there is ample evidence to support a conclusion that he is in fact "fit." The record reveals that the father has remarried and lives in a spacious new home. The evidence also shows that the father's family situation is close, with a healthy, strong, yet relaxed relationship. The father has been described to be a person of integrity with a good general reputation in the community. Therefore, we conclude that the trial court neither erred nor abused its discretion in awarding custody to the natural father as opposed to the grandparents.
The grandparents' second contention is that the visitation award granted by the trial court is inadequate. Whereas, the father on cross-appeal contends that the awarded visitation rights will be detrimental to the children's best interests.
Ala.Code (1975), § 30-3-4, provides:
This statute has been construed as authorizing the trial court in its discretion to award visitation...
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Graville v. Dodge
...Id. at 1149-51. 4. In the following cases, courts found grandparent visitation statutes to be constitutional: Cockrell v. Sittason, 500 So.2d 1119, 1121 (Ala.Civ. App.1986); West v. West, 294 Ill.App.3d 356, 228 Ill.Dec. 794, 689 N.E.2d 1215, 1221 (1998); Sightes, 684 N.E.2d at 233; Spradli......
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JS v. DW
...been challenged. It is interesting to note that former § 30-3-43 the predecessor to § 30-3-4.1, was challenged in Cockrell v. Sittason, 500 So.2d 1119 (Ala.Civ.App.1986). Even though the appellant in Cockrell had not raised that issue at the trial level, the court, with little discussion an......
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Ridenour v. Ridenour
...visitation in the instant case is reasonable and does not constitute an abuse of discretion. See, e.g., Cockrell v. Sittason, 500 So.2d 1119, 1121 (Ala.Civ.App.1986) (children and father had been living with grandparents for over a year; no abuse of discretion where trial court awarded gran......
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Dodd v. Burleson
...such an attack upon the constitutionality of the version of § 30-3-4, Ala. Code 1975, that was then in effect (see Cockrell v. Sittason, 500 So.2d 1119 (Ala. Civ.App.1986)), the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)......