I.L. v. L.D.L., Jr.
| Decision Date | 31 July 1992 |
| Citation | 604 So.2d 425 |
| Parties | I.L. v. L.D.L., Jr. 2910053. |
| Court | Alabama Court of Civil Appeals |
Paul D. Brown, Mobile, for appellant.
John W. Cowling, Mobile, for appellee.
The parties were divorced on November 26, 1990, and custody of the one-year-old child of the parties was awarded to the mother subject to specified visitation of the father. The father was ordered to pay $176 per month for child support.
On January 17, 1991, the father filed a "motion for rule nisi," alleging that the mother had interfered with his visitation rights by refusing to allow him to pick up the child on the times specified in the divorce decree. The mother filed a motion to dismiss, followed by a motion to suspend visitation privileges temporarily, in which she alleged that, because of evidence of sexual abuse and inappropriate behavior of the child, the Mobile County Department of Human Resources (DHR) was investigating the case. The father's rights of visitation were temporarily suspended until the hearing on the motion for rule nisi. The trial court entered an order resetting the case for hearing and ordering DHR to conduct an investigation into both home environments and to submit a report to the court prior to the reset date. The father was allowed supervised visitation.
The mother then filed a motion to modify child support. The hearing was again reset, and the father filed a motion to compel, requesting that the trial court issue an order compelling the DHR representative to submit her report to the court on or before the hearing reset for July 9, 1991. The motion was granted, and the representative was ordered to submit her report on or before July 5, 1991.
After hearings on July 9 and July 11, 1991, the trial court ordered supervised visitation for the father with the child on July 15 and 16, 1991, and further affirmed the visitation as set out in the judgment of divorce, ordering that the parties cooperate with each other due to the father's serving in the armed forces. The mother appeals, contending that it was an abuse of discretion to reinstate unsupervised visitation of the father. We agree and reverse and remand.
At the outset we note that while a trial court has broad discretion when determining visitation rights of a noncustodial parent, each case requires an examination of the facts and circumstances of that individual situation. Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App.1987). Furthermore, the primary consideration in establishing visitation rights for the noncustodial parent must be the best interests and welfare of the child. Brothers v. Vickers, 406 So.2d 955 (Ala.Civ.App.1981). The trial court's judgment awarding visitation will be reversed only when there has been an abuse of the trial court's discretion. Jackson v. Jackson, 520 So.2d 530 (Ala.Civ.App.1988).
The father testified that he had been in the army for four months and that he was married to the mother for approximately two years. He filed the motion for rule nisi because the child was not available to him during his visitation times. He particularly objected to not being able to have the child before nighttime on her birthday. He stated that he would never hurt, physically abuse, or molest the child and that, although he worked in facilities with children where he was trusted not to engage in improper behavior, he has never before had such accusations made against him. He stated that the allegations were fabricated. He claimed that he was current with child support payments and that his income is approximately the same since he entered the military as it was before.
The mother testified to the following: When the child was one-year-old, the mother suspected an abuse problem because of the way that the child was acting, and she took her to the pediatrician. The pediatrician told the mother not to worry if the child was not "ripped and torn." After the divorce the mother again noticed inappropriate behavior by the child after the child returned from her weekend visitation with her father. She took the child to the pediatrician, who called in a nurse-specialist from the abuse clinic.
On the morning after the next weekend visitation, the mother took the child back to the pediatrician. The pediatrician called the Child Advocacy Center (Center) and the Department of Human Resources (DHR). The child was counseled at least twelve times by a certified clinical psychologist at the Center. The mother also went to group counseling so that she would be able to help the child. She filed her motion to suspend visitation in response to what she was told by a health care professional.
In describing the child's conduct since the divorce, the mother stated that the child has been very scared of men with beards and that the father used to have a beard. At first the child would stick things near her vagina and place her finger in her mouth and say Then the child would touch her vaginal area and say "Daddy pee pee, Mommy." The child would wake up screaming in the middle of the night and would not let anyone touch her. This behavior has subsided.
The mother, whose income is $700 per month, testified that her expenses for the child have increased and that she has been told that the child will need counseling for the rest of her life.
The maternal grandmother testified that prior to the divorce the child had nightmares and that she never wanted to be left alone with her father. She further stated that after the divorce the child would scream, kick, and shut the door in her father's face, saying "no, Daddy, no, no, no." She further testified that
A social worker in a protective services capacity with DHR testified to the...
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