Tob v. Cjb

986 So. 2d 433, 2007 Ala. Civ. App. LEXIS 767, 2007 WL 4277593
CourtCourt of Civil Appeals of Alabama
DecidedDecember 7, 2007
Docket2060540
StatusPublished

This text of 986 So. 2d 433 (Tob v. Cjb) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tob v. Cjb, 986 So. 2d 433, 2007 Ala. Civ. App. LEXIS 767, 2007 WL 4277593 (Ala. Ct. App. 2007).

Opinion

986 So.2d 433 (2007)

T.O.B.
v.
C.J.B.

2060540.

Court of Civil Appeals of Alabama.

December 7, 2007.

*435 Alison Baxter Herlihy and Virginia Wiggs Haas, Mobile, for appellant.

John Wayne Boone, Mobile, for appellee.

THOMAS, Judge.

T.O.B. ("the father") and C.J.B. ("the mother") were divorced in October 2003. The divorce judgment incorporated an agreement of the parties providing, among other things, that they would have joint legal custody of their two daughters, four-year-old A.B. and three-year-old C.B. ("the children"), that the mother would have sole physical custody of the children, and that the father would pay child support and have liberal visitation privileges with the children.

During their marriage, the parties lived in Creola in Mobile County. After the divorce, the father moved to Tuscumbia in Colbert County, where he lived with his parents for a while until he purchased a home of his own. Because of the long driving distance between their residences, the parties agreed that each would have the children for alternating two-week periods of visitation, with the parties meeting in Clanton, halfway between their respective residences, to exchange the children. In April 2005, the father became concerned that the children might have been sexually abused while they were in the mother's custody. The father contacted an attorney, took the children to see a physician and a counselor, and refused to return the children to the mother. The father also filed in the Colbert Circuit Court a protection-from-abuse complaint and a complaint to modify the divorce judgment, seeking sole physical custody of the children. Both complaints were subsequently dismissed.

On September 30, 2005, the mother filed in the Mobile Circuit Court ("the trial court") a motion for immediate return of the children. She also petitioned to modify the divorce judgment, seeking an increase in child support and a modification of the father's visitation rights. On October 7, 2005, the father answered and filed a counterclaim seeking sole physical custody of the children. He also filed a motion for pendente lite custody of the children, which the trial court granted. On March 24, 2006, the trial court appointed a guardian ad litem for the children. On May 24, 2006, the mother filed a motion for pendente lite visitation with the children. Following a hearing on that motion, the trial court granted the mother visitation with the children during the weekend of July 28-30, 2006, with any further pendente lite visitation subject to a report by the guardian ad litem. The court ordered the mother not to allow any male friends, acquaintances, or family members to be around the children during her visitation periods.

Evidence presented during a three-day trial in September 2006 tended to show that the parties' alternating two-week visitation-period arrangement, which would have come to an end when A.B., the older child, began school in the fall of 2005, had been working well and that there had been no problems until April 17, 2005. On that date, the father testified, the children cried during the entire two and one-half hour drive from Clanton to Tuscumbia. The father had to work that evening; therefore, when he arrived at his parents' house, he left the children with their paternal grandparents. The paternal grandmother called the father at work that night at 10:00 p.m. to report a conversation that she had had with the children that evening. *436 When the father returned from work at 7:30 a.m. on April 18, he talked with the children, after which he contacted an attorney who recommended that the father speak to counselor Lynn McLean.

McLean, a social worker and a licensed professional counselor, testified that, on April 19, 2005, she met with the father and the paternal grandparents, who told her that the children, who were then five and four years old, respectively, reported that they had been molested by three men: S.H., the children's maternal step-grandfather; R.A., the children's maternal uncle; and D.P., the mother's boyfriend. The children made virtually identical reports with respect to S.H. and R.A.—that each man had bathed them and had asked them to sit on his lap naked afterwards. With respect to D.P., they reported only that he had bathed them.

A.B. said that R.A. had "hurt her in the water" while bathing her. Both children said that S.H. had touched them in their private areas. In addition, the children stated that S.H. had asked them to "kiss [him] like they were married" and to "dance sexy" for him. The children told McLean that they had informed their mother of what the three men had done to them and that the mother had said, "That's nothing; don't worry about it and don't tell Daddy."

McLean conducted 26 counseling and play-therapy sessions with the children. She testified that during play therapy the children used dolls to demonstrate what had happened to them. McLean said that the children designated a male doll as "R.A.—S.H." and that they exhibited both fear and anger toward that doll, hitting and biting it with a toy alligator and a toy shark and "slinging it to make sure it was gone." McLean found it significant that the children chose a large rubber snake toy and rubbed the snake on the private parts of a female doll. She stated that the snake represented inappropriate sexual touching, and she explained that the size of the snake indicated the degree of trauma that the children had experienced as a result of that touching. McLean gave her opinion that both children had been touched and hurt in their private parts and were suffering from post-traumatic stress disorder.

The father and the paternal grandfather testified to several incidents of what they considered to be oversexualized behavior on the part of the children before April 2005. The father said that during the spring and summer of 2004 A.B. had frequently danced naked in front of a mirror or struck a provocative pose, saying, "Ain't I sexy; take a picture of me." Both children told the father that S.H. had taken pictures of them. The father stated that, more than once, he found the girls under the bed covers "wrestling naked." The paternal grandfather referred to the children's "wrestling" as simulated "humping." The father testified that he had informed the mother of the children's oversexualized behavior, but, he said, the mother had dismissed his concerns, stating that the children "never acted that way" around her. The mother denied that the father had ever told her of his concerns on the topic.

The father testified that during the parties' marriage the mother had told him that she had been molested as a child by her mother's boyfriends. According to the father, the mother said that S.H. had gotten into bed with her and had touched her inappropriately and that R.A. had watched her bathing when she was a teenager. The father testified that the mother had told him that she had reported the events to her mother, the children's maternal grandmother, but that the maternal grandmother had not believed her. The father *437 said that the parties had agreed during the marriage not to leave the children for overnight visits at the maternal grandmother's house when S.H. and R.A. were there. The mother denied both that she had reported such events to the father and that such events had ever occurred.

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T.O.B. v. C.J.B.
986 So. 2d 433 (Court of Civil Appeals of Alabama, 2007)

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Bluebook (online)
986 So. 2d 433, 2007 Ala. Civ. App. LEXIS 767, 2007 WL 4277593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tob-v-cjb-alacivapp-2007.