CBB v. JSD

• Decision Date: 05 April 2002
• Citation: CBB v. JSD, 831 So.2d 620 (Ala. Civ. App. 2002)
• Parties: C.B.B. v. J.S.D.
• Court: Alabama Court of Civil Appeals

831 So.2d 620

C.B.B. v.J.S.D.

2000351.

Court of Civil Appeals of Alabama.

April 5, 2002.

Amy A. Slayden, Huntsville, for appellant.

H. Coleman Burton, Huntsville, for appellee.

MURDOCK, Judge.

This case concerns the custody of a minor child, C.S.B.Although the child's mother, J.S.D., and his father, C.B.B., were never married, they lived together with the child (first in the paternal grandparents' home, and then in an apartment they rented from a third party) for approximately a year after the child's birth, during which time both parties participated in the parenting of the child.About a year after the child's birth, however, the mother and the child moved out of the apartment; soon thereafter the father brought this action in the Madison County Juvenile Court against the child's mother, seeking a determination of paternity and legal and physical custody of the child.

The mother responded to the complaint filed by the father by filing an answer and a counterclaim in which she sought deoxyribonucleic-acid (DNA) testing to establish paternity as to the child and requested an award of child support.The juvenile court entered an order that, among other things, directed the parties and the child to undergo DNA testing.Subsequent DNA testing showed that C.B.B. was indeed the biological father of C.S.B., and the parties agreed on the issue of paternity of the child, leaving the issues of custody and a potential award of child support to be determined.

After an ore tenus proceeding, the juvenile court entered a judgment setting forth detailed findings and conclusions concerning the characteristics of the mother and the father of the child.The juvenile court stated its ultimate conclusion as follows:

"Wherefore, based on the specifics set out [in this judgment] and the totality of the evidence presented, the court finds that the fatherhas failed to show byclear and convincing evidence that the mother is unfit to maintain custody of the minor child, [C.S.B.].Absent a showing of unfitness on behalf of the father, he shall share custody, but shall exercise custody on a temporary basis ... on the dates and times set out in Exhibit `A,' referred to as the `visitation schedule'....

"Based on the findings of the court in that the mother is to exercise primary custody of the child, the father owes an obligation of support to the child.Therefore, the father shall pay to the mother, for the use and benefit of the minor child, the sum of $287.00 per month."

The father appealed from the juvenile court's judgment to the Madison Circuit Court.The circuit court entered an order transferring the father's appeal to this court, pursuant to Rule 28(D), Ala. R. Juv. P.

With commendable candor, the mother has conceded in her brief to this court that the juvenile court"applied the wrong standard of proof."The judgment under review expressly provides that the father"failed to show by clear and convincing evidence that the mother[was] unfit to maintain custody."From the juvenile court's reference to the mother's "fitness" to "retain" custody, and its reference to the lack of "clear and convincing" evidence in support of the father's petition for custody, it appears that that court erroneously applied the principles of Ex parte Terry,494 So.2d 628(Ala.1986), in which our Supreme Court noted that in order for a nonparent to overcome a natural parent's right to his or her child's custody, there must be "clear and convincing evidence,"494 So.2d at 630, of either a "`voluntary forfeiture of that right'" by the natural parent or a finding of "`misconduct or neglect to a degree which renders that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question.'"494 So.2d at 632, quotingEx parte Mathews,428 So.2d 58, 59(Ala.1983)(emphasis omitted).

This case involves an initial custody determination between two parents of a minor child, neither of whom has "voluntarily forfeited" custody of the child to the other, and neither of whom has been found "unfit" by the trial court.The correct standard to apply in this case is the best interest and welfare of the child.SeeEx parte Couch,521 So.2d 987(Ala.1988);Ex parte McLendon,455 So.2d 863(Ala.1984);Brown v. Brown,602 So.2d 429(Ala.Civ. App.1992).

The mother contends that this court should address what decision the juvenile courtwould have reached using the "best-interests" standard....