Graham v. Graham, 640 So. 2d 963 (Ala. Civ. App. 1994). · Go Syfert
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Graham v. Graham, 640 So. 2d 963 (Ala. Civ. App. 1994). Cases Citing This Book View Copy Cite
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cited 7× by 7 distinct cases, 2008–2025 · …characteristics of those seeking custody, including age, character, stability, mental and physical health ... and the interpersonal relationship between each child and each parent. at p. 964 ✓ Topic ↗
cited 6× by 5 distinct cases, last quoted 2008 · …characteristics of those seeking custody, including age, character, stability, mental and physical health . . . and the interpersonal relationship between each child and each parent. at p. 964 ✓
57 citation events (48 in the last 25 years) across 2 distinct courts.
Strongest positive: Michael James Russell v. Jennifer Senn Russell (Appeal from Shelby Circuit Court: DR-19-900526). (alacivapp, 2025-04-04)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 30 distinct citers. How cited ↗
discussed Cited as authority (rule) Michael James Russell v. Jennifer Senn Russell (Appeal from Shelby Circuit Court: DR-19-900526).
Ala. Civ. App. · 2025 · confidence medium
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.
discussed Cited as authority (rule) Kendrum Demell Robinson v. Katina Lynette Robinson (Appeal from Shelby Circuit Court: DR-22-900471).
Ala. Civ. App. · 2024 · confidence medium
"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.
cited Cited as authority (rule) Hyche v. Hyche
Ala. Civ. App. · 2016 · confidence medium
App. 2003). [[Image here]] “In Graham v. Graham, 640 So.2d 963, 964 (Ala. Civ.
discussed Cited as authority (rule) Vest v. Vest
Ala. Civ. App. · 2016 · confidence medium
Likewise, it is proper for the court to consider the “characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent.” Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981).’” Hennis v. Hennis, 977 So.2d 520, 527 (Ala.Civ.App.2007) (quoting Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994)).
discussed Cited as authority (rule) Chamberlin v. Chamberlin
Ala. Civ. App. · 2014 · confidence medium
In regard to custody determinations, this Court has also stated: ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).” “ ‘Ex parte Fann, 810 So.2d 631, 632-33 (Ala.2001). “‘In a divorce action between two fit parents, where there has been no prior custody determination and neither parent has voluntarily., relin quished custody of the child, the “bes…
discussed Cited as authority (rule) Cooper v. Cooper
Ala. Civ. App. · 2014 · confidence medium
In regard to custody determinations, this Court has also stated: ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).” “ ‘Ex parte Farm, 810 So.2d 631, 632-33 (Ala.2001). “‘In a divorce action between two fit parents, where there has been no prior custody determination and neither parent has voluntarily relinquished custody of the child, the “best i…
discussed Cited as authority (rule) R.Z. v. S.W.
Ala. Civ. App. · 2013 · confidence medium
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))....
discussed Cited as authority (rule) Havron v. Havron
Ala. Civ. App. · 2013 · confidence medium
In regard to custody determinations, this Court has also stated: ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).” “ ‘Ex parte Farm, 810 So.2d 631, 632-33 (Ala.2001). “ ‘In a divorce action between two fit parents, where there has been no prior custody determination and neither parent has voluntarily relinquished custody of the child, the “best …
discussed Cited as authority (rule) Long v. Long
Ala. Civ. App. · 2012 · confidence medium
“In a divorce action between two fit parents, where there has been no prior custody determination and neither parent has voluntarily relinquished custody of the child, the ‘best interest’ of the child is controlling; the parties stand on ‘equal footing’ and no presumption inures to either parent. ““The trial court’s overriding consideration is the children’s best interest and welfare.’”’ Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998) (quoting Collier v. Collier, 698 So.2d 150, 151 (Ala.Civ.App.1997), quoting in turn Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.A…
discussed Cited as authority (rule) Kelly Renee Sims v. Jason Pepper Sims.
Ala. Civ. App. · 2011 · confidence medium
“In a divorce action between two fit parents, where there has been no prior custody determination and neither parent has voluntarily relinquished custody of the child, the ‘best interest’ of the child is controlling; the parties stand on ‘equal footing’ and no presumption inures to either parent. ‘ “ ‘The trial court’s overriding consideration is the children’s best interest and welfare.’ ” ’ Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998) (quoting Collier v. Collier, 698 So.2d 150, 151 (Ala.Civ.App.1997), quoting in turn Graham v. Graham, 640 So.2d 963, 964 (Al…
discussed Cited as authority (rule) Harris v. Harris
Ala. Civ. App. · 2010 · confidence medium
In Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994), this court wrote: “In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent.
discussed Cited as authority (rule) J.B. v. Cleburne County Dhr
Ala. Civ. App. · 2008 · confidence medium
In making that determination, the juvenile court should 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)).
discussed Cited as authority (rule) Giardina v. Giardina
Ala. Civ. App. · 2008 · confidence medium
The older son also told the trial judge that his mother had removed him from Rainbows, a counseling program for children of divorced parents, because, he thought, "she's scared of everyone finding out about her behavior." In making a custody determination, "`it is proper for the court to consider the "characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent."'" Smith v. Smith, 887 So.2d 257, 262 (Ala.Civ.App.2003) (quoting Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.Ap…
discussed Cited as authority (rule) Parker v. Parker
Ala. Civ. App. · 2006 · confidence medium
Likewise, it is proper for the court to consider 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)) (internal citations omitted).
discussed Cited as authority (rule) Lamb v. Lamb
Ala. Civ. App. · 2006 · confidence medium
The trial court's overriding consideration is the children's best interests and welfare."'" Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998)(quoting Collier v. Collier, 698 So.2d 150, 151 (Ala.Civ.App.1997), quoting in turn Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994)).
discussed Cited as authority (rule) Headrick v. Headrick
Ala. Civ. App. · 2005 · confidence medium
"In a divorce action between two fit parents, where there has been no prior custody determination and neither parent has voluntarily relinquished custody of the child, the `best interest' of the child is controlling; the parties stand on `equal footing' and no presumption inures to either parent. `"`The trial court's overriding consideration is the children's best interest and welfare.'"' Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998) (quoting Collier v. Collier, 698 So.2d 150, 151 (Ala.Civ.App.1997), quoting in turn Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994))." Fell v. Fel…
cited Cited as authority (rule) Gonzalez v. Gonzalez
Ala. Civ. App. · 2005 · confidence medium
The trial court's overriding consideration is the children's best interests and welfare." Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994) (citations omitted).
cited Cited as authority (rule) R.K.J. v. J.D.J.
Ala. Civ. App. · 2004 · confidence medium
Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994).
cited Cited as authority (rule) Rkj v. Jdj
Ala. Civ. App. · 2004 · confidence medium
Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994).
discussed Cited as authority (rule) J.M. v. D.V.
Ala. Civ. App. · 2003 · confidence medium
See also Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994)(“If neither parent has previously been given primary physical custody, then the ‘best interests of the child’ standard applies.”); Fitzhugh v. Fitzhugh, 634 So.2d 565 (Ala.Civ.App.1994)(where there was no judicial determination favoring one parent regarding physical custody, the best-interests standard applied); Mardis v. Mardis, 660 So.2d 597 (Ala.Civ.App.1995)(because there was no prior determination regarding physical custody, the best-interests standard applied). 1 A trial court may consider, in making an initial award of cus…
discussed Cited as authority (rule) Jm v. Dv
Ala. Civ. App. · 2003 · confidence medium
See also Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994)("If neither parent has previously been given primary physical custody, then the `best interests of the child' standard applies."); Fitzhugh v. Fitzhugh, 634 So.2d 565 (Ala.Civ.App.1994)(where there was no judicial determination favoring one parent regarding physical custody, the best-interests standard applied); Mardis v. Mardis, 660 So.2d 597 (Ala.Civ.App.1995)(because there was no prior determination regarding physical custody, the best-interests standard applied). [1] A trial court may consider, in making an initial award of custody b…
discussed Cited as authority (rule) Gilliam v. Gilliam
Ala. Civ. App. · 2003 · confidence medium
Durham v. Sisk, 628 So.2d 873, 874 (Ala.Civ.App.1993) (citing Hall v. Hall, 571 So.2d 1176 (Ala.Civ.App.1990)). “ ‘ “The trial court’s overriding consideration is the children’s best interests and welfare.” ’ ” Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998) (quoting Collier v. Collier, 698 So.2d 150, 151 (Ala.Civ.App.1997), quoting in turn Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994)).
discussed Cited as authority (rule) T.T.W. v. V.A.
Ala. Civ. App. · 2003 · confidence medium
A trial court may consider, in making an initial award of custody based on the best interests of the child, factors such as the “ ‘characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between [the] child and [the] 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)).
discussed Cited as authority (rule) Headrick v. Headrick
Ala. Civ. App. · 2002 · confidence medium
Because this was an initial custody determination, where the parties are on equal footing and the trial court must base its decision on what it determines would be in the best interest of the child, Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994), our review is very limited.
discussed Cited as authority (rule) M.S.H. v. C.A.H.
Ala. Civ. App. · 2002 · confidence medium
Likewise, it is proper for the court to consider 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)).
discussed Cited as authority (rule) Msh v. Cah
Ala. Civ. App. · 2002 · confidence medium
Likewise, it is proper for the court to consider 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)).
discussed Cited "see" Clark v. Clark (2×) also: Cited "see, e.g."
Ala. · 2009 · signal: see · confidence high
See Graham, 640 So.2d at 964 (noting factors for consideration in a custody determination include the “ ‘character, stability, [and] mental and physical health’ ” of the parents and “ ‘the interpersonal relationship between [the] child and each parent’ ” (quoting Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981))); Tims v. Tims, 519 So.2d at 559 (noting that a parent’s ability to provide for a child’s emotional and social needs is a factor in determining custody of the child).
cited Cited "see" Smith v. Smith
Ala. Civ. App. · 1998 · signal: see · confidence high
See Graham v. Graham , supra. The mother also argues that the trial court abused its discretion in fashioning the property division.
discussed Cited "see, e.g." E.H.G. v. E.R.G.
Ala. · 2011 · signal: see also · confidence medium
See also Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994) (‘In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent.
cited Cited "see, e.g." Ex Parte Erg
Ala. · 2011 · signal: see also · confidence medium
See also Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.
Retrieving the full opinion text from the archive…
Crystal Ann Graham
v.
James Walter Graham.
AV92000782.
Court of Civil Appeals of Alabama.
Jun 10, 1994.
640 So. 2d 963
1994 WL 248139
Virginia W. Haas, Mobile, for appellant. Thomas Allen Deas, Mobile, for appellee.
Robertson.
Cited by 50 opinions  |  Published

This is a divorce case.

Crystal Ann Graham filed a complaint seeking a divorce from James Walter Graham in the Circuit Court of Mobile County on February 5, 1992. Among other things, she sought custody of the parties' three daughters, then aged nine, six, and two, and requested that the father pay child support. The father filed an answer and a counterclaim for divorce, also seeking custody of the parties' three daughters and requesting child support. On March 4, 1992, pursuant to an *Page 964 agreement between the parties, the trial court issued an order directing that "[c]ustody shall remain status quo pending further order, with the oldest child residing with the father and the two youngest [children] residing with the mother."

Following ore tenus proceedings, the trial court entered a judgment of divorce on May 25, 1993, awarding custody of the parties' three daughters to the father. The mother was granted reasonable visitation, including alternate weekends, four weeks during the summer, and one week during the Christmas holidays. Also, the mother was directed to pay child support in the amount of $291.20 per month. The mother filed a motion to vacate that judgment pursuant to Rule 59, Ala.R.Civ.P., which was denied. The mother appeals.

The mother raises two issues for this court's consideration: (1) whether the trial court erred in failing to award her custody of the two youngest daughters; and (2) whether the trial court incorrectly calculated the amount of the monthly child support obligation that she would owe.

Our supreme court has stated, "In divorce cases . . . where evidence is presented ore tenus, a child custody determination is committed to the sound discretion of the trial court, and will not be reversed on appeal absent a finding that the determination is so poorly supported by the evidence as to be plainly and palpably wrong." Ex parteWalters, 580 So.2d 1352, 1353 (Ala. 1991). This standard recognizes the trial court's unique position to observe the parties and to hear their testimony. Lucero v. Lucero,485 So.2d 347 (Ala.Civ.App. 1986). Moreover, "[w]here the trial court does not make specific findings of fact, it will be assumed that the trial court made those findings that were necessary to support its judgment, unless the findings would be clearly erroneous." Walters, 580 So.2d at 1354.

In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent. Hall v. Hall,571 So.2d 1176 (Ala.Civ.App. 1990). The trial court's overriding consideration is the children's best interests and welfare.Santmier v. Santmier, 494 So.2d 95 (Ala.Civ.App. 1986). The factors that enter into the court's custody determination include the child's age and sex and each parent's ability to provide for the child's educational, material, moral, and social needs. Tims v. Tims, 519 So.2d 558 (Ala.Civ.App. 1987). Likewise, it is proper for the court to consider the "characteristics of those seeking custody, including age, character, stability, mental and physical health . . . [and] the interpersonal relationship between each child and each parent." Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981).

The record indicates that the father has a steady job with the Mobile Police Department, and that while he has had custody of the oldest daughter, he has committed himself to her educational, material, and moral needs. He expressed his love for all three of his daughters, and stated that they have a good relationship with him. The father also testified that he considers himself financially stable and that he could provide a proper moral and educational setting for his daughters.

The mother admitted that she had held three different jobs in the previous 16 months, that she had failed to comply with a pretrial order to pay certain family debts, that she had committed adultery during the course of the marriage, and that she had incurred significant debts on numerous credit cards, all of which were in arrears at the time of the final hearing. The father and the oldest daughter testified that the mother had verbally abused and physically attacked the father in the presence of the children.

Both parties presented testimony as to their fitness to raise their daughters, and it is apparent from this testimony that both parties love their daughters very much. However, in light of the foregoing evidence, we cannot hold that the trial court committed a plain and palpable abuse of discretion in awarding custody of the daughters to the father. See Walters, supra.

We now address the mother's contention that the trial court erred in calculating the amount of child support she was to pay each month. Rule 32(B)(4), Ala.R.Jud.Admin., provides that "[e]xpense reimbursements *Page 965 or in-kind payments received by a parent in the course of employment . . . shall be counted as income if they are significant and reduce personal living expenses." The Rule 32, Ala.R.Jud.Admin., child support guideline form completed by the trial court shows that it attributed a monthly income of $1,084.63 to the mother. This sum included $368.33 per month that the mother had designated on the affidavit she signed pursuant to Rule 32(E), Ala.R.Jud.Admin., as "free daycare" that she had received from her employment. However, if the mother does not have custody of the children, then the benefit of free daycare from her employment cannot "reduce her personal living expenses." See Rule 32(B)(4). Therefore, we hold that the trial court erred in calculating the amount of the mother's monthly child support obligation.

Based on the foregoing, that portion of the trial court's judgment awarding custody of the parties' daughters to the father is affirmed. However, that portion of the judgment directing the mother to pay child support in the amount of $291.20 per month is reversed, and the cause is remanded for a recalculation of child support without regard to the free daycare available to the mother if she had been awarded custody.

The mother's request for an attorney fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

THIGPEN and YATES, JJ., concur.