Ex parte Couch
| Decision Date | 26 February 1988 |
| Citation | 521 So.2d 987 |
| Parties | Ex parte Carol B. COUCH (van Elkan). (Re Carol B. COUCH (van Elkan) v. William F. COUCH). 86-731. |
| Court | Alabama Supreme Court |
Arthur F. Fite III of Merrill, Porch, Doster & Dillon, Anniston, for petitioner.
G. Coke Williams of Williams & Norton, Anniston, for respondent.
This case involves the custody of the two minor children of Carol van Elkan (formerly Carol Couch) and William F. Couch. The Court of Civil Appeals affirmed the trial court's order giving the father custody of the two minor children, whose ages are six and eight, 521 So.2d 985 (Ala.Civ.App.1987). The mother's application for rehearing was overruled, and we granted her petition for certiorari; we affirm.
The final judgment divorcing the parents was entered in November 1984. Incorporated into the divorce judgment was a separation agreement giving the parents joint legal and shared physical custody of the children. Following the divorce, the parents, who lived only one-half mile apart, changed physical custody of the children each week. Thus, the children lived with their mother one week and their father the next week.
The parents followed this arrangement for two to three months and they then agreed between themselves that it would be better for the children to live primarily at one home, with the other parent having liberal visitation rights. Because the father was working long hours in the family business, including nights and weekends, and the mother was not working at all, the parties agreed that the children would live with their mother.
Regarding his reasons for entering into this arrangement, Mr. Couch testified:
[I] tried to do what we thought was in the best interest of the children and allow them to live in one place and a lot of visitation with me more than every other weekend....
I felt it was in the best interest of the children at that time since I was working more, and she was not working.
The mother's testimony was consistent. She testified:
Bill and I both agreed that it was not good for the children to be back and forth every other week. Bill also stated to me that it was too hard on him to have the children every other week. That he could not get up and prepare to go to work, fix their lunches, and get them ready for school and take them to school and be at work on time. It was too hard.
The court's judgment was never formally modified, but the parents maintained that informal arrangement from approximately January or February 1985, through March 1986, when the mother decided to marry Eric van Elkan and move to New York. She intended to take the children with her to New York, but Mr. Couch obtained a temporary restraining order to prevent her from taking the children out of Alabama.
Subsequently, the mother moved to dissolve the TRO and to modify the custody provisions of the divorce judgment to give her full custody of the children, provide reasonable visitation for the father, and to increase child support payments.
Mr. Couch then made an oral motion requesting physical custody of the children. Following an evidentiary hearing on the motions, the court gave the father physical custody, while maintaining joint legal custody. The court's order stated:
4. The Court cannot conclude from the evidence that the children are likely to suffer any irreparable or significant emotional trauma if placed in the primary care of either party. While there is evidence that the children are "closer" to the Plaintiff, that they have a good relationship with Plaintiff's husband, and that children "generally" fare better in a two-parent home, there is ample evidence that they have a close relationship with the Defendant, and no evidence that they would not fare well in the care of the Defendant.
5. The families of all parties concerned, including Plaintiff's husband, reside in the Calhoun County area. In the opinion of the Court, it is more realistic to expect that the Plaintiff and her husband will be able to maintain a closer relationship with the children through their contacts and visits with their families than would the Defendant if the children reside in New York.
6. The evidence does not show that it would materially promote the best interest of the parties' minor children to grant the full care, custody, and control of said children to either Plaintiff or Defendant.
Therefore, the Court being of the opinion that the best interest of the parties' minor children would be served by placing their primary care with the Defendant....
(Emphasis supplied.)
Mrs. van Elkan's motions regarding visitation and child support were thus denied. No application for stay was made; therefore, the children have been living with their father since September 1986, pursuant to the trial court's order.
The Court of Civil Appeals affirmed that order. Mrs. van Elkan petitioned for certiorari on the ground that the trial court had applied the wrong standard for determining whether the father should obtain custody of the children.
There are two different standards for reviewing custody arrangements. If custody has not previously been determined, then the appropriate standard is "the best interest of the children." See Murphy v. Murphy, 479 So.2d 1261 (Ala.Civ.App.1985); Ex parte Berryhill, 410 So.2d 416 (Ala.1982). However, if there is a judgment granting custody to one parent, or if one parent has "given up" legal custody, then custody will be changed only if it would "materially promote" the children's welfare. Ex parte McLendon, 455 So.2d 863 (Ala.1984).
In McLendon, a judgment awarded custody of the divorced parents' infant child to the paternal grandparents. Approximately five years later, after the mother had remarried and had another child, she attempted to regain legal and physical custody of her first child. The court held that the appropriate standard was whether a "change" in custody would materially promote the welfare of the child. Because there were equal advantages and disadvantages to living with either the mother or the grandparents, the court held that moving the child would not materially promote the welfare of the child; therefore, custody remained with the grandparents. The reason for the stricter standard after custody has been determined once, is that uprooting children and moving them can be traumatic. Therefore, the benefit of moving the children must outweigh the potential harm. McLendon, supra.
When a court makes an initial determination of custody, each parent has an equal right to try to gain custody of the children. Custody of the children is no longer routinely given to the mother and, in fact, courts now will often permit arrangements that allow both parents to participate in raising their children. In this particular case, partially because the parents lived in the same city and within the same school system, the court granted shared physical custody of the children in its initial determination of custody. When the mother decided to remarry and move to New York, the circumstances were...
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