This case centers on the weight of the evidence necessary for the court to award sole legal custody. Mother appealed the award of sole legal custody to father. The court of appeals upheld the trial court’s ruling. Mother had a variety of complaints about father and had hired a private investigator to conduct surveillance on father. Father testified that he had made “bad choices” with alcohol in the past, but stated he did not have a current problem with alcohol use. Father further testified that he never consumed alcohol while the children were in his custody and he had not been intoxicated while interacting with the children on video calls.
Father had fairly significant concerning evidence about mother, including that mother told him she could get him fired from his job. After mother made this statement, “someone” wrongfully reported to father’s employer that his license was suspended and father was laid off. Mother had also called the police to report that father was driving without a license and intended to have him arrested. When this occurred, father waited at the exchange with the children, showed the police a valid driver’s license and left the exchange with the children. Mother also testified that she felt father was lying to her about who was watching the children during his parenting time and that the children returned from father’s parenting time with medical and psychological problems. Mother also contended that she had found child pornography on father’s computer in the past and he had been abusive to the children in the past, although she did not report any of these concerns.
Mother went on to testify that she fears for the children’s safety while with the father but she does not exercise video conferences that she is permitted. Mother testified that she took the children to the hospital three times following dad’s parenting time, for bruised fingers, a 101 degree fever and a third time when one of the children was unresponsive. Mother did not communicate the medical visits to father. Mother told hospital personnel that she was not going to call father because she does not trust him and he will lie anyways. Mother provided an exhibit of text communications from her phone showing she had labeled him “narc asshole” in her phone. Mother also admitted in trial that she had made facebook postings calling father “filth”, accusing father of cheating during the marriage and stated that she was contemplating putting up a billboard near father’s girlfriend’s place of work to accuse her of publicly having participated in an affair with father. Mother testified that she would not be able to trust father enough to co-parent with him.
The trial court entered its judgment awarding the parties joint physical custody, but awarding dad sole legal custody. Mother appealed the decision. The appellate court affirmed (supported) the trial court’s decision. Citing Morgan v. Morgan, the court held that “joint custody is not appropriate and not in the best interest of the children when parents are unable to make shared decisions concerning the welfare of their children. The parents’ ability and willingness to communicate and cooperate is crucial in considering whether joint legal custody is proper. Joint legal custody may be proper even if there is some level of personal tension and hostility between the parents, provided there is substantial evidence that despite this acrimony the parties nonetheless have the ability and willingness to fundamentally cooperate in making decisions concerning the children’s upbringing. The Court goes on to quote the holding in Reno v. Gonzales which holds that a judgment granting sole legal custody must be based on a finding that the parties lack a commonality of beliefs concerning parental decisions, and lack the willingness and ability to function as a unit in making those decisions.
For mother to challenge the trial court’s award of sole legal custody to father based on the weight of the evidence, mother needed to “identify a challenged factual proposition, the existence of which is necessary to sustain the judgment” (here that the father and mother would not be able to co-parent) and then “identify all of the favorable evidence in the record supporting the existence of that proposition.” Houston v. Crider. Mother attempted to argue in her appeal that the trial court ignored the public policy to prefer an award of joint legal custody, but she fails to show how the information provided to the court is against the weight of the evidence.
The western district court of appeals affirmed the award of sole legal custody to dad.
So what is the learning lesson from the Moore case? If you are angry and bitter about the circumstances of the conclusion of your marriage, make sure you obtain strong legal advice about how to act and behave in the months of separation leading to your divorce trial. Mother likely was wronged by father, father admittedly engaged in some poor behavior during the parties’ marriage and likely, the father caused the necessity for the dissolution of the parties’ marriage. However, once the separation occurred, mother allowed her anger to override her good judgment, decision making and ability to act in the best interests of the children. This resulted in mother having an inability to put the children’s needs, at times, above her own anger. Mother’s behavior netted her a situation where the trial court did not believe she could effectively work with father to co-parent the children.
If you have frustration, hurt or anger from the circumstances that led to the end of your marriage or relationship, make sure you get significant and meaningful legal advice in terms of how to address processing your feelings. If you fail to do so, you risk, potentially, the loss of custody of your children if you cannot process your feelings of hurt, anger or betrayal in constructive ways. If we can help you understand how to process through the end of your marriage or relationship, please call Pingel Family Law today to schedule your consultation.