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Lose Custody for Discovery Violation?

Can you lose custody of your children because you failed to provide copies of your bank records, tax documents, and other information?  The Alabama Court of Civil Appeals in Pace v. Smith essentially said “Yes, you can.”  But it stopped just short of doing so to a military veteran with multiple deployments, and multiple (unrelated) failures to comply with Mom’s discovery requests.

Common Discovery in Domestic Cases

It is common if not routine in custody and child support cases for one parent to seek financial information about the other parent.  Indeed that happened here beginning with interrogatories.  Then, after a delay while Father was deployed, Mother sought to depose Father and asked him to produce specific financial information like bank statements, credit card statements, and tax returns.

Enough is Enough – Father’s Many Chances

Father had many, many chances to answer or object to discovery, but failed to do so.

  • Before deployment Father was subject to an order to compel his answers to interrogatories;
  • After his deployment ended Father failed to bring his financial documents to a deposition;
  • After the deposition was rescheduled for two days later, Father still didn’t bring the financials;
  • Mother sought and got an order to compel from the court;
  • A month later Mother had requested again, but Father still hadn’t provided, the financials;
  • Mother asked the court to sanction Father and Father didn’t respond;
  • Mother again asked the court to sanction Father to which Father said he had provided all the requested financial (which apparently he hadn’t);
  • Mother asked the court for a default judgment – a ruling that she should get custody by default due to Father’s failure to provide his financial documents;
  • Father objected to some discovery and promised to provide other information;
  • Mother again asked the court for a default judgment because Father still hadn’t provided the requested financial information; and

Finally, the court ruled “The point has come in this case where, simply put, enough is enough.”  The trial court granted Mother’s default judgment against Father, which resulted in her getting sole legal and physical custody.

Not Enough Proof from Mom

Father appealed the default judgment.  However, the appeals court was ready to rule with the trial court that “enough was enough.”  Indeed it appears the appeals court would have upheld the default judgment awarding mom sole custody, except…

Except, through her pleadings and affidavits Mother failed to show there had been a material change in circumstances that would have justified changing custody from joint to sole.  The only justification the appeals court found for the change was Father’s multiple military deployments.

For many good reasons, and in part due to the Servicemembers’ Civil Relief Act, deployment alone is not enough reason to change custody.  Even though Father had done enough to earn such a harsh punishment for his failure to answer discovery, the appeals court reversed the case because Mother hadn’t shown in her sworn statements a sufficient change in circumstances.

Want to Learn More?

  1. What does a deposition gone wrong look like?  Check out this 2014 article about a Justin Bieber deposition that first went poorly, then went viral;
  2. Although Alabama doesn’t use one, some states have financial forms that must be filled out and disclosed to the other side.  Check out Colorado’s Sworn Financial Statement for the types of financial information often relevant in divorce and custody cases;
  3. Learn more about the balance courts try to strike between allowing parties to get information through discovery, while also preventing it from being too burdensome;
  4. Read the appellate court’s opinion in Pace v. Smith; and
  5. Give Browne House Law a call and put one of our lawyers to work and directing discovery in your divorce or custody case.