Legal History of Case
The father and his former wife were divorced by a Tennessee court in 2002 when their daughter was seven weeks old.
Since 2003, the little girl has thrived under a Tennessee equal-physical custody Court Order, alternating four consecutive days at a time with each parent.
In late 2004 the Tennessee Court of Appeals affirmed the Tennessee equal-time order and said, "the mother has refused to adhere to the plain requirements of the parenting plan, and that she had purposely and deliberately embarked on a course, which if not stopped would eventually erode the relationship between the father and child."
In September 2006, when nothing had materially changed, and without explanation or findings of unfitness of the father, Alabama Judge Ned Mike Suttle of Lauderdale County (Florence), Alabama modified the Tennessee equal-time custody order, giving the mother custody of the child 286 days per year, and the father custody of the child 79 days per year.
The Mother's legal basis for custody modification, which she also attempted unsuccessfully in Tennessee: for the little girl to attend non-mandatory church daycare pre-k full-time instead of spending part of that time with her stay at home dad. The father worked with his little girl on the same criteria as day care and had since she was eighteen months old.
Read the Mother's Tennessee court testimony about day care, here.
Alabama Civil Court of Appeals Reversed Mike Suttle
In June 2007 the Alabama Civil Court of Appeals - honoring Constitutional legal principles - reversed Mike Suttle because his ruling is plainly and deliberately wrong.
Interestingly, the Alabama Civil Court of Appeals on the same day they handed down an opinion in this case issued an opinion JWJ vs. PKR and PHR that details the Constitutional implications as outlined in Troxel vs. Granville. The significance of Troxel, the U.S. Supreme Court said when decisions between a judge and a fit parent, the judge must defer to the fit parent.
Alabama Supreme Court Reverses Civil Court of Appeals 27 Months Later
Yes, We Said 27 Months Later!
In September 2009 the Alabama Supreme Court reinstated Mike Suttle's order.
The Alabama Supreme Court in their judgment and opinion of this case using Alabama's ore tenus rule said, "when a trial court lists no written findings of fact, we are required to assume the necessary findings were made to support the decision."
Well known Alabama law says ore tenus has no application to matters of law.
Known federal constitutional law says, no written findings of fact by a judge, i.e. the ore tenus rule, violates due process constitutional rights.
Father Filed Application for Rehearing
On September 25, 2009 the father filed an Application for Rehearing based on Constitutional Grounds. To read the Father's Constitutional challenge to Alabama Supreme Court go here.
Alabama Supreme Court Overruled (Denied) Rehearing Request with No Opinion
In February 2010, as expected, the Alabama Supreme Court overruled (denied) - with no opinion - the father's Application for Rehearing.
The Alabama Supreme Court judgment and opinion and judge Suttle's order is being appealed to federal court.