Bjn v. Pd

742 So. 2d 1270, 1999 Ala. Civ. App. LEXIS 629, 1999 WL 701689
Procedural entryThis page is a short order in Bjn v. Pd. Read the opinion of the Court — 742 So. 2d 1270
Court of Civil Appeals of Alabama·Decided September 10, 1999·No. 2980660·Published

Opinion

742 So.2d 1270 (1999)

B.J.N.
v.
P.D.

2980660.

Court of Civil Appeals of Alabama.

September 10, 1999.

*1271 James R. Johnson, Carbon Hill, for appellant.

Submitted on appellant's brief only.

BEATTY, Retired Justice.

This is a child-custody case. After a hearing, the trial court awarded custody to the father, subject to the mother's visitation rights, and ordered the mother to pay $150 per month in child support. The mother appeals. We reverse and remand.

On September 10, 1998, the father filed a petition seeking temporary and permanent custody, care, and control of his three-year-old child. The petition alleged that on September 9, 1998, the child's mother had left the minor child alone with his 13-year-old stepsister, and that the mother had left the child alone before. The petition further alleged that "[the father] is of the opinion that [the mother] may have relapsed into the use of marijuana and/or other drugs." That same date, the trial court entered an ex parte order awarding the father temporary custody of the child pending a final hearing. Thereafter, the mother filed an answer and a counterclaim, denying the allegations in the father's petition. Following the final hearing on the petition, the trial court entered an order that provided, in pertinent part, as follows:

"This cause now comes before the Court for final order upon completion of the home studies. The court having received the same as well as reviewed the home study of both the [father] and the [mother] and having received a report from the court referral officer that the [father] has been compliant with the color code [drug testing] requirements placed on him but that the [mother] has not been compliant with the color code requirements placed on her, and in consideration of the same as well as all the evidence in this cause,
"IT IS ORDERED, ADJUDGED, AND DECREED as follows:
"1. That the care, custody, and control of the minor child in this cause ... be and the same is hereby vested in the [father], subject to the right of the [mother] to have access to and visitation with the said minor child...."

The trial court also ordered the mother to pay $150 per month child support.

The record discloses the following pertinent facts. The parties are the parents of a child, who was born in August 1995. The parents were never married. In 1996, after being convicted of burglary, the father was incarcerated. The father attributed his conviction to an addiction to alcohol and drugs. For a brief time in 1996, a paternal aunt had temporary custody of the child because of allegations that the mother had been using marijuana. The court subsequently returned custody to the mother and ordered the mother to participate in the "color code" drug-screening program.[1]

*1272 The mother was employed, and with her earnings and help from her family she purchased a three-bedroom mobile home, in which she, her 13-year-old daughter from another relationship, and the minor child lived. This mobile home is located a matter of yards from the homes of the child's maternal aunt, maternal grandmother, and several other relatives. The stepsister was a constant companion to the minor child, and she frequently cared for him when their mother was away. The father admitted during the hearing that the minor child was always well cared for and well dressed and that the child's stepsister had "practically raised [him]."

The mother testified that she could barely provide her family food, clothing, and shelter on her income alone and that she struggled financially. It was often impossible for her to purchase things that the family did not absolutely require, and the mother testified that some of her home furnishings had been repossessed because she could not pay for them. The mother testified that she had never received child support from her daughter's father and that she had received only about $1,000 over a 21-month period from the minor child's father. Through a work-release program, the father found a job while still incarcerated, and he generally remained employed after his release from jail. He testified, however, that he was unable to pay more child support because he "was just getting on [his] feet."[2] The mother also testified that she had incurred a large medical bill because the minor child had to have tubes placed in his ears and that the father had made no attempt to help her pay for their child's health care or to provide him with health insurance.

The mother testified that in September 1998 she was working from 10 p.m. until 6 a.m. She testified that she had made several attempts to get on a day shift so she could be with her children at night. However, she said, work assignments were determined by seniority and she had not been with her employer long enough to get a day shift.[3]

On the nights when the mother had to work, the minor child and his stepsister would spend the night with the child's maternal aunt. The aunt lived within eyesight of the mother's mobile home. The minor child and his stepsister went to the maternal aunt's house at dark to get ready for bed, and the mother would walk over to the house before leaving for work to tell them good night. On nights when the two children did not go to their maternal aunt's house, their 17-year-old cousin came to the mobile home and stayed with them. Other relatives lived nearby and from time to time they would stay with the children.

The father testified he had suspicions that the mother had been leaving her children alone while she worked and that around September 1, 1998, he and his mother went to the mother's mobile home to express their concerns. The father further testified that around the same time he began talking with his lawyer about getting custody of the minor child and getting a restraining order against the mother.

On September 9, 1998, the mother had a cold and could not work that night as scheduled. The mother told her daughter that she was going to see a doctor and instructed her to take the minor child to the maternal aunt's house when it got dark. She told her daughter that she would return home as soon as possible. The mother obtained permission from her *1273 supervisor to miss work, and then she and a friend went to the emergency room in Haleyville. The mother remained in the emergency room until about 12:30 a.m. and returned home around 1:30 a.m. When she arrived home, the mother learned that the father had come to her house while she was away and had taken the child. The mother immediately telephoned the father to ask about the child.

The minor child's stepsister testified that she and her brother were watching television when their mother left for the doctor and that they fell asleep. The children woke up between 9:30 and 10:30 p.m., but because it was late they did not go to their maternal aunt's house as their mother had instructed them to do. Some time later, the stepsister heard a banging at the door that continued for some time. She did not know who might be at the door and did not answer it. About 15 minutes later, she heard someone knocking on the door again. This time the stepsister also heard her maternal aunt's voice and answered the door. The stepsister testified that the minor child's father took the boy and left the mobile home. The father did not ask where the child's mother was or when she was expected back home. Both the stepsister and the maternal aunt testified that the mother had never left the children alone before that night.

The father married in April 1998.

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Bjn v. Pd, 742 So. 2d 1270, 1999 Ala. Civ. App. LEXIS 629, 1999 WL 701689 (Ala. Ct. App. 1999).

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