Ore Tenus Evidence In Child Custody Case
Child-custody cases are among the most perplexing and heart- wrenching that appellate judges are called upon to review.
We can rarely discern from a cold record exactly what kind of custody arrangement would be in the best interests of children already struggling to cope with the breakup of their family.
For this reason, in such cases this Court has consistently adhered to a well-established standard for reviewing a trial court's factual findings based on disputed testimony. In Ex parte Bryowsky, 676 So. 2d 1322, 1324 (Ala. 1996), this Court stated:
"When evidence in a child custody case has been presented ore tenus to the trial court, that court's findings of fact based on that evidence are presumed to be correct.
The trial court is in the best position to make a custody determination -- it hears the evidence and observes the witnesses.
Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing.
See Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994), wherein this Court, quoting Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App. 1993), set out the well-established rule:
Our standard of review is very limited in cases where the evidence is presented ore tenus.
A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So. 2d 440 (Ala. Civ. App. 1989), and Vail v. Vail, 532 So. 2d 639 (Ala. Civ. App. 1988), and we will not reverse 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. Gamble v. Gamble, 562 So. 2d 1343 (Ala. Civ. App. 1990); Flowers v. Flowers, 479 So. 2d 1257 (Ala. Civ. App. 1985)."'