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RELOCATION OF CUSTODIAL PARENT - HUBBARD V. HUBBARD

Hubbard v. Hubbard, [Ms. 2160185, July 28, 2017] __ So. 3d __ (Ala. Civ. App. 2017). This 3-2 decision by Judge Thomas (Thomas, Pittman, and Donaldson, JJ., concur, and Thompson, PJ., and Moore, J., dissent), affirms on ore tenus review the circuit court’s order awarding custody of the three minor children to the mother but denying the mother’s request to relocate with the children to New Jersey. The opinion acknowledges that the evidence painted the father in a very bad light due to his refusal to support the children and his extremely abusive treatment of the mother. However, the court affirmed the judgment of the circuit court which refused the mother’s request to relocate with the children to New Jersey. The evidence showed that the mother was licensed to teach in New Jersey but not Alabama and would be able to live with the children with the mother’s mother in New Jersey. The judgment was affirmed largely due to the ore tenus standard which the opinion describes as follows

Our standard of review is very limited .... A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal ... and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence, this Alabama law does not allow. It is our duty to affirm the trial court’s judgment if it is fairly supported by credible evidence, regardless of our own view of that evidence or whether we would have reached a different result had we been the trial judge.

Ms. *13 (internal citations omitted).

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