Rel: September 6, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. 

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, 

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections 

may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS

SPECIAL TERM, 2024

_________________________

CL-2024-0074

_________________________

Kendrum Demell Robinson

v.

Katina Lynette Robinson

Appeal from Shelby Circuit Court

(DR-22-900471)

LEWIS, Judge.

Kendrum Demell Robinson ("the father") appeals from a judgment 

entered by the Shelby Circuit Court ("the trial court") that, among other 

things, divorced him from Katina Lynette Robinson ("the mother"); 

awarded custody of K.J., the parties' son ("the son"), to the father and 
CL-2024-0074

2

custody of K.D.R., the parties' daughter ("the daughter"), to the mother; 

and established visitation for both parents. We affirm the judgment of 

the trial court.

Evidence and Procedural History

The parties married on June 11, 2011. There were two children 

born of the marriage, the son and the daughter, who were 13 years old 

and 7 years old, respectively, at the time of the trial discussed infra, 

which was held on July 26, 2023. According to the mother, during the 

marriage, she "did everything" with respect to the parties' children; she 

"enrolled them in school," "went to PTO meetings," and "went to 

practices." The mother testified that, because the father typically worked 

a night-shift job, she was the "involved parent." The mother further 

testified that she was the disciplinarian while the father was the 

children's friend; she also testified that the father had used profanity 

around the son.

According to the father, before he separated from the mother, he 

attended the children's sporting events and dances. The father testified 

that, during his days off from work in the summer of 2022, he would play 

with the children, "attend to them," do "TikTok dances," "[p]lay games"
CL-2024-0074

3

with the son, "go outside," and generally "[d]o a lot of stuff" while the 

mother was at work. The father testified that, although both he and the 

mother scheduled the children's medical appointments, he took the

children to their appointments.

According to the son, in 2022, prior to the parties' separation, the 

mother, the father, the son, and the daughter all lived together in Calera, 

and both children attended school there. The son testified that he was in 

the "gifted-education program" at his school.

The mother testified that the parties separated in August 2022

when she filed a petition for a Protection From Abuse ("PFA") order 

against the father. The mother explained that she filed the petition

"because he was manipulating the kids against me. [H]e 

started carrying weapons around the house while I was taking 

pictures. He would take my kids away from me to other 

people's houses where I didn't know where they were. He 

would hide food and different stuff. Sometime[s] he would put 

me out the house. I had filed a police report where he had 

slammed my hand up in the door. It was just a lot of mental 

and physical abuse going on."

The father specifically denied each of those allegations. He also testified 

that, although he owned a gun in July 2022, he kept the gun in his 

vehicle. He further testified that he had never shown the gun to the 
CL-2024-0074

4

children and had never brandished the gun or used it to threaten the 

mother or the children.

On August 4, 2022, based on the mother's petition for a PFA order, 

the trial court entered an ex parte order granting the mother temporary 

custody of the children and enjoining the father from contacting the 

mother or the children. According to the son, at that time, the father

moved out of the parties' marital home.

On August 11, 2022, the father filed in the trial court a complaint 

seeking a divorce from the mother. The trial court consolidated the 

mother's pending PFA action with the divorce action. The mother stated 

that she eventually agreed to dismiss the PFA action because she thought

that the father was no longer a threat after he moved out of the marital 

home.

The father testified that he did not see the children during the 

month of August 2022 after he moved out of the marital home. On 

August 25, 2022, the father filed a motion for pendente lite custody of the 

children and for pendente lite use and occupancy of the marital home. 

On that same day, the mother answered the father's divorce complaint; 

she also filed a counterclaim that asserted abuse by the father as an 
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5

alternative ground for divorce and requested, among other things,

"physical and legal custody" of the children1 or, in the alternative, joint 

legal custody and "primary physical custod[y]."2

On September 12, 2022, the mother responded to the father's 

motion for pendente lite relief, arguing that it was in the children's best 

interests to remain in her custody, as they had been since the entry of 

the PFA order, because the father worked a night-shift job five to six

nights per week. The mother also requested child support and exclusive 

use and possession of the marital home. The father testified that he had

not seen the children during the month of September 2022.

On September 13, 2022, the trial court held a hearing at which it 

considered the father's motion for pendente lite relief. At the hearing, 

the parties entered into a pendente lite agreement ("the September 2022 

1We interpret the request for "physical and legal custody" to be a 

request for sole physical custody and sole legal custody. Ala. Code 1975, 

§ 30-3-151(4) and (5).

2We interpret the request for "primary physical custody" to be a 

request for sole physical custody. Ala. Code 1975, § 30-3-151(5).
CL-2024-0074

6

pendente lite agreement").3 The September 2022 pendente lite 

agreement stated, in pertinent part:

"The wife shall continue to have exclusive use and 

possession of the marital residence until the [father's] work 

schedule changes to day shifts, at which point the parties 

shall rotate week on/week off, Sunday to Sunday. Said 

rotation shall begin on October 2nd at the earliest and shall 

be contingent upon the [father] providing proof of said change 

to day shifts."

On September 26, 2022, the mother filed an amended answer and 

amended counterclaim, which differed from her original counterclaim in 

that it specifically requested "primary physical and legal custody" of the 

children4 and ownership and possession of the marital home and other 

items of property. On September 27, 2022, the mother filed a motion for

a pendente lite order awarding her custody of the children and exclusive 

possession of the marital home, awarding the father visitation, and 

requiring the father to pay child support.

3As set forth, infra, the trial court later entered an order that 

adopted and incorporated the September 2022 pendente lite agreement.

4We interpret the request for "primary physical and legal custody" 

to be a request for sole physical custody and sole legal custody. Ala. Code 

1975, § 30-3-151(4) and (5).
CL-2024-0074

7

The mother testified that, on September 28, 2022, she moved with 

the children from Calera to the Irondale/Trussville area, approximately 

45 minutes away by car, to be closer to her job. The son testified that, 

after the move, he and the daughter changed schools, which required him 

to leave the gifted-education program. According to the mother, in 

October 2022, the daughter began attending an after-school program for 

girls at her school in Trussville.

The father introduced copies of messages that he testified he sent 

to the mother via the "My Family Wizard" app in October 2022, January 

2023, and April 2023, providing his updated work schedules in 

accordance with the September 2022 pendente lite agreement. The 

father testified that, despite his compliance, he did not see the children

in August, September, October, or November 2022.

Although the mother initially testified that she could not recall

whether the father had seen the children in September, she later testified 

that the father had seen the children in August, September, October, and 

November 2022. The mother testified that she had never withheld the 

children from the father and that the children communicated with the 

father during the fall of 2022 using their cellular telephones.
CL-2024-0074

8

According to the mother, there was friction between the parties 

when, on October 2, 2022, the father wanted to begin alternating 

possession of the marital home every week, as described in the September 

2022 pendente lite agreement. According to the mother, the father still 

wanted to have custody of the children only on his days off from work, 

rather than every other week as stated in the September 2022 pendente 

lite agreement. The mother testified that the father desired to alternate 

possession of the marital home because he had nowhere else to live. The 

father introduced a message sent by him to the mother on October 3, 

2022, explaining that, although it was his week to stay in the marital 

home, he and the children were staying elsewhere because there were no 

utilities or furniture in the marital home. The father also introduced a 

message sent to him by the mother stating that, because she had moved 

out of the marital home, he was responsible for reconnecting the utilities.

On October 4, 2022, the father responded to the mother's pendente 

lite motion that had been filed on September 27, 2022, and argued that 

the September 2022 pendente lite agreement had already addressed each 

of the mother's requests for relief. He also filed a motion for the trial 

court to enter a pendente lite order reflecting the September 2022 
CL-2024-0074

9

pendente lite agreement. The trial court then entered an order adopting

the September 2022 pendente lite agreement. Later that day, the mother

filed a motion for the trial court to reconsider that order; however, that 

motion was denied.

On October 20, 2022, the father filed a motion for the trial court to 

hold the mother in contempt based on her alleged violation of the court's 

October 4, 2022, pendente lite order. The father averred that the mother

"intentionally denied" him the custodial time to which he was entitled;

"abandoned the marital residence and moved, with the minor children, 

to Trussville"; enrolled the children in a new school without notifying 

him; provided the school with a copy of the ex parte PFA order that had 

been rescinded, which resulted in him being disallowed from 

communicating with the children during school hours; and refused to 

provide the father with her current address. The father requested an 

award of pendente lite custody of the children.

In response, on October 25, 2022, the mother averred that the 

father failed to provide his work schedule; stated that he could not comply 

with the September 2022 pendente lite agreement because of his work 

schedule; and violated the September 2022 pendente lite agreement by 
CL-2024-0074

10

coming to her house uninvited. The mother stated that the father had 

her new address. She admitted that she unintentionally provided the ex 

parte PFA order to the school but stated that she informed the school that 

the father could communicate with the children. She also stated that she 

had not denied the father visitation.

The father's motion was heard on November 8, 2022. At the 

hearing, the parties produced another pendente lite agreement ("the 

November 2022 pendente lite agreement") setting out a visitation 

schedule for November 8, 2022, through January 24, 2023, with the 

handwritten title "Father's PLR visitation schedule." Although the 

November 2022 pendente lite agreement did not state that the daughter 

would reside with the mother and that the son would reside with the 

father, the father's subsequent motions stated that these were additional 

terms of the agreement and that the agreement established visitation 

"for the respective parents," not only for the father. The parties 

requested that the trial court adopt the November 2022 pendente lite 

agreement as an order of the court. On November 11, 2022, the trial 

court entered an order adopting the November 2022 pendente lite 

agreement.
CL-2024-0074

11

The son testified that, in the fall of 2022, the mother had "pulled a 

gun" on him. The son provided no further details on that incident 

because he stated that he had already testified about it at a pretrial 

hearing. The mother denied that she had ever "pulled a gun" on the son.

The son also testified that the mother had punched him. The 

mother denied punching the son. The son stated that, after the incident 

in which he claims the mother punched him, he ran away from the 

mother's home and telephoned the father. The son testified that, 

thereafter, he moved in with the father and reentered the giftededucation program at the school in Calera that he had previously 

attended.

The mother testified that the son ran away because he was defiant

and did not want to follow her rules. She testified that she telephoned 

the police and that the police retrieved the son. She also testified that 

she asked the police to telephone the father to help deescalate the 

situation. The mother admitted that, after the son ran away from home, 

she informed the father that the son previously communicated that he 

did not want to live with the mother.
CL-2024-0074

12

The father introduced bank statements from January 31, 2022, 

through March 31, 2023, pertaining to three Wells Fargo accounts. The 

mother admitted that one of the accounts was labeled: "Account number 

... 3902 [the daughter's name], a minor, by Katina Holiday." Katina 

Holiday is the mother's maiden name. Similarly, the mother admitted 

that one of the accounts was labeled: "Account number ... 5076 [the son's 

name], a minor, by Katina Holiday." However, the mother denied that 

the savings accounts belonged to the children, testifying, "[t]hose are not 

my [children's] accounts. I just put their name[s] on [them]." According 

to the mother, she had "placed [her] kids' name[s] on all [her] accounts." 

However, the father also introduced bank statements from a Wells Fargo 

account labeled "Account number ... 5215 Katina Holiday."

The mother admitted that she requested that the bank name the

two accounts as savings accounts for the children, but she stated that she 

had done so only to ensure that her children could access the accounts in 

the event of her death and that she and the father had not discussed 

placing the children's names on the accounts. The mother testified that 

the money in the savings accounts was comprised of "insurance money,"

inheritance from her deceased parents' estates, and a settlement from an 
CL-2024-0074

13

automobile-accident lawsuit in which she was involved; she stated that 

the father had not deposited any money into those accounts.

The mother admitted that, between the end of July and the end of 

October 2022, she removed approximately $22,000 from the account 

ending in 5076, which was in the son's name. The statements admitted 

into evidence also showed that, at the end of July 2022, the balance of the 

bank account ending in 3902, which was in the daughter's name, was 

$24,274.14, and that, at the end of October 2022, the balance of that 

account was $1,174.33, which is a diminution of $23,099.81.

The mother testified that she donated $67,000 (comprised of the 

$22,000 from the 5076 account in the son's name and $45,000 from the 

5215 account, which was in her name only) "[i]n cash" to "Breast Cancer 

Awareness" and two churches. There was no testimony given as to how 

the $23,099.81 that was removed from the account ending in 3902, in the 

daughter's name, was spent. The mother admitted that she expected the 

children to attend college one day; she stated that she donated the money 

despite that expectation because of her anxiety and depression. The 

mother testified that, now, she takes medication to manage her 

depression and anxiety.
CL-2024-0074

14

The father testified that the parties had agreed to put the two

savings accounts in the children's names under the mother's name rather 

than his; however, he stated that his intention was for the children to 

have the money in those accounts when they graduated. The father also 

testified that he did not know that the mother had removed any money 

from the accounts until he heard the mother's testimony at the trial.

On December 12, 2022, the father filed a motion to compel the 

mother to comply with the November 2022 pendente lite agreement, 

specifically averring that the mother failed to provide the son with his 

personal property after he began living with the father. On May 10, 2023, 

the father filed another motion for pendente lite relief, alleging again that 

the mother failed to provide the son's personal property; alleging that the 

mother had failed to cooperate in arranging visitation; and alleging that 

the mother had left the daughter home alone on more than one occasion. 

The father's motion was set to be heard at trial.

The father testified that, in May 2023, the daughter telephoned him 

crying and stating that she was afraid because the mother had left her at 

home alone. The father testified that that instance was not the first time 

that he heard from the daughter that she had been left by the mother at 
CL-2024-0074

15

home alone. He testified that, after receiving the daughter's call, he 

telephoned the police and drove to the mother's house. The mother 

testified that she left the house that day to pick up her laptop from work 

in order to work from home for the rest of the day and that her neighbor

had been watching the daughter. The daughter indeed testified that 

their neighbor had come to check on her while the mother was away from 

the home. 

The father testified that the day the daughter called him about 

being home alone was a Friday and that he was scheduled to have the 

daughter from that day through the following Tuesday; however, he 

stated that his visitation with the daughter did not begin until that 

Monday. The mother admitted that she had not allowed the father to 

have that scheduled visitation with the daughter. She testified that the 

daughter was afraid after the police came to the house and wanted to 

stay with the mother. According to the mother, the police "made [the 

father] leave," but he "returned three times after that." The mother 

testified that she felt like the father was harassing her. The father 

admitted that he had gone inside the mother's gated community using 

the key code that day; however, he stated that he had not entered the 
CL-2024-0074

16

mother's apartment, seen the mother in person that day, or threatened

the mother.

The daughter testified that, as a result of her telephoning the father 

that day, the mother had taken away her cellular telephone. The 

daughter testified, however, that she had still been able to message with 

the father on her tablet. The mother, on the other hand, denied taking 

the daughter's cellular telephone and stated that the telephone had been 

lost. The mother denied having ever prevented the daughter from 

communicating with the father.

The father testified that, during the week preceding the July 2023

trial, he had two days off from work and asked the mother for a visit with 

the daughter. Although the mother testified that she had been allowing 

the children to visit with the father on his days off from work, she 

admitted that she did not facilitate that particular request and that she 

did not give the father a reason for her denial of that visitation. The 

mother testified that she had to visit her sister in the hospital. However, 

the daughter testified that, although they planned to go to the hospital 

to visit her aunt, she and the mother had not gone that week because the 

aunt had not telephoned them.
CL-2024-0074

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A trial was held on July 26, 2023. The son testified that he was 

about to enter the eighth grade. He testified that, since the parents 

separated, he lived primarily with the father, and that the daughter 

stayed with the father when the father had time off from work. The son 

stated that he plays multiple sports at his school and that he is happy in 

his home.

The son testified that he wants to continue to live with the father

and wants to visit the mother "[m]aybe sometimes." He testified that he 

is uncomfortable with the mother and needs time "to heal." The son also 

testified that he would be okay with the mother attending his sports 

games and the other activities in which he is involved. The mother 

testified that, approximately one week before the trial, the son called her 

and told her that he would love for her to call him more.

The son testified that he thinks counseling for him and the mother 

could help and stated that he would be open to counseling. The mother 

also testified that she would be willing to participate in counseling with 

the son. The father testified that he, the children, and the mother 

participated in counseling pursuant to the November 2022 pendente lite 

agreement. The father testified that, at some point before the trial, the 
CL-2024-0074

18

family counselor told him that the counseling had terminated, and the 

family stopped attending; he stated that he did not know why the 

counseling ended. He testified that he was willing to continue to 

participate in counseling alongside the whole family.

The mother ultimately requested to be awarded joint custody of the 

son, stating that she recognized "that a father can do more with his son 

than [she] can." The mother testified that, at the time of the trial, she 

had not seen the son "in nine to ten months." The mother testified that 

she had not been given access to the son by the father. According to the 

mother, the father stated in a deposition that he felt that he should not 

have to force the son to establish a better bond with the mother. The 

father testified that he had given the son the choice to talk to the mother, 

telling him, "when [you're] ready, I will be there beside [you]."

The mother testified that the father told the daughter, "you need to 

come stay with us [i.e., the father and the son] because if you don't come 

stay with us, then you will never see [the son] again." The daughter 

testified that she lives more often with the mother than with the father. 

She testified that she has her own room at the mother's house and that 

she likes staying with the mother. She further testified that she likes
CL-2024-0074

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and wants to continue attending her school in Trussville. The daughter 

also testified that she wants to continue attending her after-school 

program regardless of whether she lives with the father or the mother. 

The daughter stated that she visited "[a] little bit" with the father, but 

that she did not know the last time that she visited with him. The 

daughter also testified that, if she continues to live primarily with the 

mother, she wants to visit with the father more.

According to the daughter, while she was at the father's house, she 

spent time with the son. She testified that, sometimes, the father left her 

and the son at home alone while the father was at work. The daughter 

testified that she and the son get along and that he is a good big brother. 

The mother testified that the daughter misses the son.

When asked with whom she would choose to live, if given the choice, 

the daughter first testified that she wants to stay with the father but 

then stated that she wants to spend equal amounts of time with both 

parents. The daughter further testified that she had not told the mother 

that she would like to live with the father because she is "kind of scared." 

She testified that she is afraid of the mother because of the mother's 
CL-2024-0074

20

actions toward the son. The daughter testified that she is not afraid of 

the father.

The mother ultimately requested to be awarded "primary custody"5

of the daughter and for visitation with the daughter to be awarded to the 

father. The mother stated that she feels she is better suited to take care 

of the daughter because they "share a special bond." The mother testified 

that she has a good relationship with the daughter. She testified that 

the daughter is generally obedient and that the daughter "had all As" in 

school.

The mother explained that, in large part due to the father's work 

schedule, which is from 6:00 a.m. to 6:00 p.m., requiring him to leave 

home at 3:00 a.m., the mother is a better nurturer to the daughter than 

the father. As an example, the mother testified about an incident in 

which the daughter had returned to the mother from the father's house 

not wearing underwear.

5We interpret the request for "primary custody" to be a request for 

sole legal custody and sole physical custody. Ala. Code 1975, § 30-3-

151(4) and (5).
CL-2024-0074

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The mother testified that the father had only been visiting with the 

daughter on his days off of work, which comprised about seven days per

month. The mother stated that, despite the parties' agreement to 

alternate with the children weekly, the father asked to have the children 

only on the weekends. The mother testified that she is open to the father 

having more visitation time and that she wants to alternate custody of 

the children weekly during the summer months.

The mother requested that she be given the opportunity to take the 

daughter when the father has to work, rather than having the son watch 

the daughter. Additionally, the mother requested that the trial court 

order the parties to accommodate the children's extracurricular 

activities. According to the mother, the father deliberately caused the 

daughter to miss "many field trips and activities" with her after-school 

program.

The father testified that, on his days off from work, when he had 

custody of the daughter, he asked the daughter whether she wanted to 

attend the after-school program, and she said "no" and that she wanted 

to spend the rest of the day with the father instead. The father also 
CL-2024-0074

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testified that he had no objection to the daughter attending the afterschool program when and if she wanted to do so.

The father ultimately requested to be awarded sole physical 

custody of both children. He also stated that he desires the children to 

have visitation with the mother every weekend or every other weekend 

and that he is willing to transport the children to those visits. The father 

also testified that he works from 6:00 a.m. to 5:20 p.m. or 5:30 p.m., which 

requires him to leave home at 3:30 a.m. on workdays. The father testified 

that his plan, if he were awarded sole physical custody of both children, 

was to utilize a babysitter and an after-school program in Calera for the 

daughter.

The mother testified that she works at a medical rehabilitation 

facility in Birmingham. She testified that her work hours are 8:00 a.m.

until 5:00 p.m., Monday through Friday, and that her work does not 

prevent her from picking up the daughter from the daughter's activities.

On September 3, 2023, the trial court entered a divorce judgment 

that, among other things, awarded "custody" of the son to the father, 
CL-2024-0074

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awarded "custody" of the daughter to the mother,6 awarded the mother 

"visitation/physical custody periods" with the son, and awarded the 

father "visitation/physical custody periods" with the daughter. The court 

also ordered the parties to "cooperate with each other to effect 

visitation/physical custody periods with the minor children" but provided 

visitation schedules for use by the parties if they could not agree upon a 

schedule. The trial court's schedules would require that the children 

spend every weekend, every holiday, and all of summer together, 

alternating living at each parents' home. The judgment also mandated

that the family participate in family counseling.7

On September 27, 2023, the father filed a timely motion to alter, 

amend, or vacate the judgment, challenging the sufficiency of the 

evidence to support the trial court's custody awards. That motion was 

denied by operation of law 90 days later, on December 26, 2023, pursuant 

6We interpret the awards of "custody" to be awards of sole legal

custody and sole physical custody. Ala. Code 1975, § 30-3-151(4) and (5).

7The judgment also stated that, "[t]o the extent not[] herein 

granted, all remaining requests for relief [we]re DENIED." 

(Capitalization in original.)
CL-2024-0074

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to Rule 59.1, Ala. R. Civ. P. On February 1, 2024, the father filed a timely 

notice of appeal.

Standard of Review

"When a [trial] court makes a custody determination 

based on ore tenus evidence, its findings in support of that 

determination are accorded a presumption of correctness on 

appeal. Ex parte Bryowsky, 676 So. 2d 1322, 1324-26 (Ala. 

1996). An appellate court will not reverse the [trial] court's 

custody judgment '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.' Phillips v. 

Phillips, 622 So. 2d 410, 412 (Ala. Civ. App. 1993)."

J.L.W. v. C.J.P., [Ms. CL-2023-0561, May 17, 2024] ___ So. 3d ___, ___

(Ala. Civ. App. 2024). "[W]hen a [trial] court has not made specific factual 

findings in support of its judgment, we must presume that the [trial]

court made those findings necessary to support its judgment, provided 

that those findings are supported by the evidence." K.C. v. Jefferson 

Cnty. Dep't of Hum. Res., 54 So. 3d 407, 413 (Ala. Civ. App. 2010). 

Discussion

On appeal, the father argues that sole physical custody of both 

children should have been awarded to him and that the mother should 
CL-2024-0074

25

have received, if anything, mere visitation with the children.8 The father 

argues that the trial court's custody award was erroneous for three 

reasons: (1) because it separated the children, (2) because the daughter

stated that she wanted to live with the father, and (3) because the mother

had abused the son.9 We will address each argument in turn.

8The father also argues that the property division in the divorce 

judgment was erroneous; however, his brief fails to cite legal authority in 

support of that argument, and it is not the responsibility of this court to 

perform a litigant's legal research. Legal Systems, Inc. v. Hoover, 619 

So. 2d 930, 932 (Ala Civ. App. 1993); Lockett v. A.L. Sandlin Lumber Co., 

588 So. 2d 889, 890 (Ala. Civ. App. 1991). Rule 28(a)(10), Ala. R. App. P., 

requires an appellant to set forth "[a]n argument containing the 

contentions of the appellant/petitioner with respect to the issues 

presented, and the reasons therefor, with citations to the cases, statutes, 

other authorities, and parts of the record relied on." Therefore, "[t]his 

court will address only those issues properly presented and for which 

supporting authority has been cited." D.M. v. Jefferson Cnty. Dep't of 

Hum. Res., 232 So. 3d 237, 243 (Ala. Civ. App. 2017) (quoting Asam v. 

Devereaux, 686 So. 2d 1222, 1224 (Ala. Civ. App. 1996)). Based on the 

foregoing, we will not address the father's argument regarding the 

property award in the divorce judgment.

9We note that the father fails to argue that, under Ala. Code 1975, 

§ 30-3-131, there should have been a presumption against awarding the 

mother custody based on the evidence of domestic abuse. Therefore, we 

need not address that presumption in this opinion. See, e.g., Griggs v. 

Griggs, 304 So. 3d 741, 745 (Ala. Civ. App. 2020) ("We note, however, that 

the wife did not argue the applicability of Ala. Code 1975, § 30-3-131,

until she filed her postjudgment motion. Therefore, the trial court was 

not required to consider that argument."). Moreover, even if we were to 

consider that presumption, the mother denied having abused the son, 
CL-2024-0074

26

The father's brief is correct that "Alabama law generally 

encourages trial courts not to separate siblings." E.F.B. v. L.S.T., 157 So. 

3d 917, 925 (Ala. Civ. App. 2014). However, Alabama law no longer 

requires that a custody judgment separating siblings be supported by a 

"compelling reason" for doing so. See A.B. v. J.B., 40 So. 3d 723, 729 (Ala. 

Civ. App. 2009). Instead, the best-interest standard applies. See Steed 

v. Steed, 877 So. 2d 602, 604 (Ala. Civ. App. 2003) ("When the trial court 

makes an initial custody determination, neither party is entitled to a 

presumption in his or her favor, and the 'best interest of the child' 

standard will generally apply."); see also Ex parte Byars, 794 So. 2d 345, 

347 (Ala. 2001).

"In A.B.[ v. J.B., 40 So. 3d 723 (Ala. Civ. App. 2009)], this court 

explained that, under Alabama law, 'siblings may be 

separated if the trial court concludes, based on sufficient 

evidence in the record, that the separation will serve the best 

interests of the children at issue.' 40 So. 3d at 729. We have 

also explained that 'the law more specifically requires a trial 

court to assess the best interests of each child individually 

when determining the custody arrangement that best suits 

and, under the ore tenus rule, the trial court could have believed the 

mother's testimony instead of the testimony of the son. See, e.g., 

Shewbart v. Shewbart, 64 So. 3d 1080, 1089 (Ala. Civ. App. 2010) ("On 

appeal from ore tenus proceedings, this court presumes that the trial 

court properly found the facts necessary to support its judgment and 

prudently exercised its discretion.").
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the interests of each child.' E.F.B.[ v. L.S.T., 157 So. 3d 917, 

925 (Ala. Civ. App. 2014)]."

Russell v. Self, 334 So. 3d 229, 235 (Ala. Civ. App. 2021).

"In making an initial award of custody based on the best 

interests of the children, a trial court may consider factors 

such as the '"characteristics of those seeking custody, 

including age, character, stability, mental and physical health 

... [and] the interpersonal relationship between each child and 

each parent."' Graham v. Graham, 640 So. 2d 963, 964 (Ala. 

Civ. App. 1994) (quoting Ex parte Devine, 398 So. 2d 686, 696-

97 (Ala. 1981)). ... Other factors the trial court may consider 

in making a custody determination include 'the sex and age of 

the [children], as well as each parent's ability to provide for 

the [children's] educational, emotional, material, moral, and 

social needs.' Tims v. Tims, 519 So. 2d 558, 559 (Ala. Civ. App. 

1987). The overall focus of the trial court's decision is the best 

interests and welfare of the children."

Steed, 877 So. 2d at 604.

Today, trial courts must determine whether separating a set of 

siblings will serve the children's best interests by examining the relevant 

factors. In weighing the factors, a court should "not focus solely on the 

biological relationship between the children" but, rather, should focus on 

"the actual interpersonal relationship between the children and how that 

relationship will be affected by their separation." K.U. v. J.C., 196 So. 3d 

265, 273 (Ala. Civ. App. 2015) (citing Alverson v. Alverson, 28 So. 3d 784, 
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28

793 (Ala. Civ. App. 2009) (Moore, J., concurring in part and concurring in 

the result in part)).

In his special writing in Alverson, Judge Moore, joined by Judge 

Bryan, explained how courts should apply the best-interest standard

with a preference for keeping siblings together:

"[S]iblings may be separated if the trial court concludes, based 

on sufficient evidence in the record, that the separation will 

serve the best interests of the children at issue. In making 

that determination, the trial court should consider the factors 

traditionally cited by the appellate courts in this state, see Ex 

parte Devine, 398 So. 2d 686, 696-97 (Ala. 1981), but it should 

also consider factors such as the interrelationship of the 

children, the children's ages, the similarity of interests and 

activities of the children, whether the children previously 

resided with the custodial parent, the parents' involvement in 

the children's upbringing, the parents' emotional stability, the 

parents' previous lack of cooperation regarding visitation, the 

children's preference, parental agreement providing for 

siblings to be together frequently, and the location of the 

parents' residences. ... [E]ach case should be decided on its 

own factual basis and ... the decision should ultimately come 

down to employing that custody arrangement that serves the 

best interests of all the children involved."

Alverson, 28 So. 3d at 793 (Moore, J., concurring in part and concurring 

in the result in part). We find Judge Moore's application of the bestinterest standard in cases of separated siblings using the factor list 

proposed in Alverson to be appropriate. Therefore, we hereby adopt those 

factors. We note, however, that the list of factors is not exhaustive.
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Turning to the analysis as it applies in the present case, we first 

address the "characteristics of those seeking custody, including age, 

character, stability, mental and physical health," the first factor listed in 

Ex parte Devine, 398 So. 2d 686 (Ala. 1981).10 Here, both parents are 

relatively young and healthy, and both have stable housing and 

employment. We note, though, that the father's job requires him to leave 

in the early morning hours before the children leave for school, whereas 

the mother's schedule allows her to report to work at 8:00 a.m.

The father specifically argues that the mother is not a suitable 

custodian because emotional instability caused her to donate $22,000 

from the son's savings account. However, there is no evidence that the 

mother donated the money from the accounts in her children's names to 

harm the children's futures; in fact, she testified that she donated a much 

larger sum from a third account that was in her name only, which tends

to show that her donations were not made for the purpose of taking 

money from the children. Additionally, although the father testified that 

the savings accounts were intended for the children's future use, 

10We also note that the parents' emotional stability is a factor listed 

in Alverson. 
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according to the mother, the children's names were on the accounts only 

for the purpose of easy accessibility by the children in the event of her 

death. Although the mother testified that she has suffered from anxiety 

and depression, she also stated that she takes medication that 

successfully treats these illnesses.

The father also specifically argues that the mother's history of 

violence towards the son and the fact that she has left the daughter home 

alone establish that the mother is not a suitable custodian for the 

daughter. While the son's testimony that the mother had punched him 

and had "pulled a gun" on him is concerning, there was conflicting 

evidence on that point, and the trial court was not bound to accept the 

son's testimony as true. Moreover, the son also testified that he wished 

to maintain a relationship with the mother and even increase his contact 

with her. There was no evidence indicating that any similar incidents 

had occurred between the mother and the daughter. Likewise, although 

the father points out that the mother had left the daughter at home alone, 

according to the mother, there was always someone watching the 

daughter while the mother was away. 
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With respect to the interpersonal relationship between each child 

and each parent, see Ex parte Devine, 398 So. 2d at 696-97, the evidence 

indicates that the father has a good relationship with both children; on 

the other hand, the mother has a good relationship with the daughter,

but she has a strained relationship with the son. The daughter testified 

that she fears the mother due to the mother's treatment of the son and

stated that she wants to see the father more; however, the daughter also 

testified that she liked living with the mother. The mother testified that 

she and the daughter share a special bond. The son testified about 

negative experiences he had had with the mother, but he also stated that 

he wants to see the mother more, communicate with her more, and 

improve their relationship through counseling. The mother also testified 

that she desires to improve her relationship with the son, but she

admitted that the son would be better off living with the father. 

We next address the sexes and ages of the children, the similarity 

of their interests and activities, and the interpersonal relationship 

between the siblings. See Ex parte Devine, 398 So. 2d at 696-97; 

Alverson, 28 So. 3d at 793. At the time of the trial, the son was 13 years 

old, and the daughter was 7 years old. The children lived together up 
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until the parents' separation and appear to have a healthy and beneficial 

relationship with each other. Although there was little evidence of 

shared interests and activities, the siblings testified they got along well 

and enjoyed their time together. According to the mother, the daughter 

had missed the son since the children were separated.

With respect to whether either parent lacks the capacity or interest 

to provide for the educational, emotional, material, moral, or social needs

of the children, see Ex parte Devine, 398 So. 2d at 696-97, there was 

evidence, as discussed previously, indicating that the father is required 

to leave for work at 3:30 a.m., which leaves him unable to personally 

assist the children in preparing themselves for school. Although the 

father stated that he could enlist the help of a babysitter in the mornings

if he were awarded custody of the daughter, the trial court could have 

concluded that the father's work schedule would have a greater effect on 

the daughter, a seven-year-old child, than it would on the son, who is a 

teenager and can stay at home without a parent present and prepare 

himself for school independently. 

We next consider whether the children previously resided with the 

custodial parent and the parents' involvement in the children's 
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upbringing. See Alverson, 28 So. 3d at 793. Here, because this case 

involves initial awards of custody and the parties were married, the 

children lived with both parents until the parties' separation. The 

mother testified that she had been the "involved parent" and that she had 

been the disciplinarian while the father had been the children's friend. 

However, the father testified that he had also taken an active role in 

rearing the children. 

We next turn to the parents' cooperation concerning visitation, 

whether there is parental agreement about allowing the siblings to be 

together frequently, and the location of the parents' residences. See

Alverson, 28 So. 3d at 793. Here, there was abundant evidence indicating 

that the parties could not cooperate for the sake of visitation. Although 

there had been several attempts at fashioning a pendente lite visitation 

agreement, problems with visitation persisted. We note, however, that 

the trial court provided a mandatory visitation schedule to take effect if

the parents fail to agree on a schedule; the default schedule requires that 

the children spend every weekend, every holiday, and all summer 

together, alternating living at each parents' home. Therefore, even in the 

absence of an agreement, there are default provisions providing for 
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frequent sibling contact. The location of the parents' residences, 

approximately 45 minutes apart by car, makes it feasible for the children 

to maintain frequent contact with each other, and both parents expressed 

their commitment to participate in counseling to aid them in coparenting 

more effectively. 

Finally, we address the children's preferences. See Alverson, 28 So. 

3d at 793. "'"The preference of the child, regardless of h[is] age and 

maturity, is not determinative of the issue of custody but is merely a 

factor the trial court may consider in reaching its decision." '" Russell v. 

Self, 334 So. 3d 229, 235 (Ala. Civ. App. 2021) (quoting Bishop v. Knight, 

949 So. 2d 160, 166 (Ala. Civ. App. 2006), quoting in turn Glover v. 

Singleton, 598 So. 2d 995, 996 (Ala. Civ. App. 1992)). With respect to this 

factor, the father argues that the daughter testified that she preferred to 

live with the father. We note, however, that the testimony of the 

daughter, a young child, was equivocal, and she later changed her 

testimony, stating that she wanted to split her time equally between both 

parents. The daughter also admitted that her initial preference for the 

father's home was because of the number of her friends that lived near 

the father's home. The evidence also indicated that staying with the 
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mother allowed the daughter to continue attending the after-school 

program near the mother's residence, which the daughter stated she 

enjoyed.

Conclusion

Considering the foregoing evidence as it relates to the relevant 

factors, we conclude that there was sufficient evidence that the trial 

court's judgment awarding custody of the daughter to the mother and 

custody of the son to the father was in the best interests of the children. 

We specifically note that the mother testified that she had been the 

involved parent and that, although her relationship with the son, a 

teenaged male, was strained, the mother and the young daughter, who 

are of the same sex, share a special bond. Moreover, we note that the 

daughter enjoyed living with the mother and attending the after-school 

program near the mother's residence. Finally, the evidence indicated 

that the father was unable to care for the daughter in the early morning 

hours because of his work schedule. Although there was also evidence

presented that weighed against the award of custody of the daughter to 

the mother and against the separation of the siblings, this court will not 
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reweigh the evidence. Based on the foregoing, we affirm the trial court's 

judgment.

AFFIRMED.

Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.