AJJ v. JL
Decision Date | 17 September 1999 |
Citation | 752 So.2d 499 |
Parties | A.J.J. v. J.L. and R.L. |
Court | Alabama Court of Civil Appeals |
Clark Hall, Gadsden, for appellant.
Dan Warnes, Guntersville, for appellees.
R.L., a paternal aunt, and J.L., her husband, petitioned the Juvenile Court of Marshall County on October 7, 1997, for custody of J.R.M., born in June 1994. The aunt and uncle alleged that the child's mother, A.J.J., had a history of arrests, including an arrest and conviction for possession of controlled substances, for which she was on probation; a second arrest for possession of controlled substances and drug paraphernalia;1 and an arrest and conviction for receiving stolen property; and they alleged that she had aided her husband in escaping from the Marshall County jail by driving him to Tennessee, although she later assisted law enforcement officials in his recapture. The aunt and uncle further alleged that the child had, since his birth, lived with them from time to time and that he had lived primarily with them since August 1996; that the mother would visit the child on a random basis and would not see or call the child for several weeks at a time; that they were unaware of where the mother was living and keeping the child during visitation; and that the mother was unstable and that her lifestyle presented a threat to the child. Finally, the aunt and uncle alleged that the child was dependent and "in immediate or threatened danger of physical and/or emotional harm in that the child has no other structured environment in which to reside other than the home provided by the petitioners."2 The aunt and uncle also provided the court with the affidavit of S.H., the mother's cousin, which stated, in part:
Following a hearing on the aunt and uncle's emergency petition for custody, the court, on October 15, 1997, entered an order finding that it would be in the best interests of the child that the aunt and uncle be granted temporary custody, because of the mother's unstable condition. The court also awarded the mother visitation rights.
A final hearing was held in the matter on December 1, 1998. The court, on January 26, 1999, entered an order finding that the child's best interests would be served by awarding custody of the child to the aunt and uncle. The mother appeals, following the denial of her postjudgment motion.
The court's order provides, in part:
We note the well-settled rule that matters regarding child custody rest soundly within the discretion of the trial court and that judgments regarding those matters will not be disturbed on appeal absent an abuse of that discretion. Watson v. Watson, 634 So.2d 589 (Ala.Civ.App. 1994). Further, when evidence is presented to the court ore tenus, the court's judgment based on that evidence is presumed correct and will not be disturbed unless it is so unsupported by the evidence as to be plainly and palpably wrong. S.C.S. v. S.W.S., 707 So.2d 278 (Ala.Civ.App.1997). The mother argues on appeal that the court erred in applying the "best-interests-of-the child standard" in awarding the aunt and uncle custody of the child. The mother seems to rely upon the "tender-years doctrine" to argue that she is presumed to be the proper person to have custody of the child and that she cannot be denied custody absent a finding that she is unfit or that she has voluntarily relinquished custody. Our supreme court abolished the tender-years doctrine in Ex parte Devine, 398 So.2d 686 (Ala.1981). However, in Ex parte Terry, 494 So.2d 628 (Ala.1986), our supreme court recognized a presumption in favor of natural parents over nonparents in custody disputes. Our supreme court held in Terry that in a custody dispute between a parent and a nonparent, the court may not award custody of the child to the nonparent without first finding, by clear and convincing evidence, that the parent is unfit. Id. This presumption may be defeated if the parent voluntarily forfeits custody of the child to the nonparent. Roden v. Colburn, 522 So.2d...
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