Kendrum Demell Robinson v. Katina Lynette Robinson (Appeal from Shelby Circuit Court: DR-22-900471).

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
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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
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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"

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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

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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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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).

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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).

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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.

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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

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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

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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.

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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 gifted-

education 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.

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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

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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.

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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

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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

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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.

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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

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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

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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

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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).

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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

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testified that he had no objection to the daughter attending the after-

school 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,

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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.)

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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

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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,

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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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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 best-

interest 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.

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