Ex parte Devine

Decision Date27 March 1981
Citation398 So.2d 686
PartiesEx parte Christopher P. DEVINE. (Re: Christopher P. DEVINE v. Alice Beth Clark DEVINE). 79-546.
CourtAlabama Supreme Court

William Henry Agee of Agee & Ghee, Anniston, for petitioner.

J. Todd Caldwell, Anniston, for respondent.

MADDOX, Justice.

We granted certiorari to review the question of whether the "tender years presumption," as applied in child custody proceedings, violates the Fourteenth Amendment to the United States Constitution. In the present case, the Court of Civil Appeals affirmed the trial court's usage of that presumption in awarding custody of the parties' two minor children to the respondent, Alice Beth Clark Devine. For the reasons hereinafter set forth, we reverse and remand.


Pursuant to Rule 10(e) of the Alabama Rules of Appellate Procedure, the petitioner/father (appellant below) and respondent/mother (appellee below) filed the following stipulations of fact to serve in lieu of the record on appeal:

and the Appellee, Alice Beth Clark Devine, (being the only parties in this cause) were legally and lawfully married on December 17, 1966, in Jefferson County, Georgia, and separated in Calhoun County, Alabama, on March 29, 1979.

(2) The two children born of the parties during their marriage, viz: Matthew Patrick Devine, a son, born June 29, 1972, and Timothy Clark Devine, a son, born June 25, 1975, (the custody as to both of whom the Court has awarded to Alice Beth Clark Devine) are children of "tender years" as contemplated by the "tender years" doctrine or presumption.

(3) The Appellee/natural mother Alice Beth Clark Devine (hereinafter sometimes referred to as "Mrs. Devine") graduated from the Woman's College of Georgia in Milledgeville, Georgia, in 1962, receiving a B. S. degree with a major in Business Administration and a minor in Business Education. Since her graduation in 1962, Mrs. Devine has taught high school for 2 years at Margaret McAvoy High in Macon, Georgia; worked at the Georgia Rehabilitation Center for at least 2 years; was an instructor at the Augusta Area Technical School in Georgia for 2 years; was an instructor trainer with the Army at Fort Gordon, Georgia for approximately 2 years; taught in high school at Notasulga, Alabama for one year; directed a media library and taught classes for the Department of Rehabilitation at Auburn University for approximately 2 years; in 1975 commenced employment with the U. S. Army at Fort McClellan, Alabama, where she was employed continuously through the time of the trial of this cause as an Educational Specialist with a GS-11 rating earning in excess of $20,000 annually as salary (plus additional fringe benefits), and at the time of the trial Mrs. Devine indicated that she intended to remain employed at Fort McClellan or at some similar employment after the trial.

(4) Mrs. Devine was born July 20, 1940 and was 38 years of age at the time of the trial of this cause. The Appellant/natural father, Christopher P. Devine was born on January 15, 1937, and at the time of the trial of this cause he was a member of the faculty and head of the Guidance and Counseling Department at Jacksonville State University, Jacksonville, Alabama. At the time of the trial, the older son had just completed the first grade at the said University's Elementary Laboratory School and the younger son was enrolled in the said University's Nursery Laboratory School.

(5) The parties further adopt all findings of facts as set forth by the trial court in its judgment of divorce dated July 6, 1979, in its order dated September 6, 1979, and in its order dated October 17, 1979, and incorporate same herein by reference.

The September 6th order referred to in stipulation number 5 was rendered by the trial court in response to the father's initial post trial motion requesting the trial court to modify its custody award. In that order the trial court offered the following justification for its decision:

The facts of this case clearly show that either plaintiff or defendant would be a fit and proper person to be vested with the care, custody and control of the parties' minor children. While there was evidence presented at trial which raised questions in the mind of the court as to each parent's suitability, none presented was of such magnitude that it showed either to be unfit. Likewise, evidence was presented to the court showing that each parent possessed certain positive qualities that should be considered in determining which of them would be the proper one to be awarded custody.

At the conclusion of the case, there did not exist a clear preponderance of the evidence for either party regarding child custody. However, there exists in Alabama law a presumption that when dealing with children of tender years, the natural mother is presumed, in absence of evidence to the contrary, to be the proper person to be vested with custody of such children. This presumption, while perhaps weaker now than in the past, remains quite viable today. See e. g. Thompson v. Thompson, 57 Ala.App. 57, 326 So.2d 124 (1975), cert. den. 295 Ala. 425, 326 So.2d 129 (1976); Taylor v. Taylor, 372 So.2d 337 (Ala.Civ.App.1979), cert. den. 372 So.2d 341 (Ala.1979).

Based upon the evidence presented at trial, the presumption of fitness discussed above and the court's opinion that it was in the children's best interest that they be in the custody of their mother, custody was placed subject to plaintiff's liberal visitation rights.

On October 17, 1979, in response to the father's second post trial motion, the trial court reaffirmed its position concerning the relative parental suitability of the parties:

The facts of this case make it obvious that either of the parties would be fit and proper to be awarded the general care, custody, and control of the minor children born of their marriage. They both have individual shortcomings; however, neither possesses adverse qualities of a nature or character sufficient to make either an unfit parent.

The sole issue presented for review is whether the trial court's reliance on the tender years presumption deprived the father of his constitutional entitlement to the equal protection of the law. In resolving this issue, we feel it is necessary to consider the historical development of the tender years presumption and re-examine its modern efficacy in light of recent pronouncements by the United States Supreme Court.


At common law, it was the father rather than the mother who held a virtual absolute right to the custody of their minor children. 1 This rule of law was fostered, in part, by feudalistic notions concerning the "natural" responsibilities of the husband at common law. The husband was considered the head or master of his family, and, as such, responsible for the care, maintenance, education and religious training of his children. By virtue of these responsibilities, the husband was given a corresponding entitlement to the benefits of his children, i. e., their services and association. It is interesting to note that in many instances these rights and privileges were considered dependent upon the recognized laws of nature and in accordance with the presumption that the father could best provide for the necessities of his children:

Undoubtedly, the father has primarily, by law as by nature, the right to the custody of his children. This right is not given him solely for his own gratification, but because nature and the law ratifying nature assume that the author of their being feels for them a tenderness which will secure their happiness more certainly than any other tie on earth. Because he is the father, the presumption naturally and legally is that he will love them most, and care for them most wisely. And, as a consequence of this, it is presumed to be for the real interest of the child that it should be in the custody of its father, as against collateral relatives, and he, therefore, who seeks to withhold the custody against the natural and legal presumption, has the burden of showing clearly that the father is an unsuitable person to have the custody of his child.

Hibbette v. Baines, 78 Miss. 695, 29 So. 80 (1900). As Chief Justice Sharkey more eloquently stated in his dissenting opinion in Foster v. Alston, 7 Miss. (6 How.) 406, 463 (1842):

We are informed by the first elementary books we read, that the authority of the father is superior to that of the mother. It is the doctrine of all civilized nations. It is according to the revealed law and the law of nature, and it prevails even with the wandering savage, who has received none of the lights of civilization.

By contrast, the wife was without any rights to the care and custody of her minor children. By marriage, husband and wife became one person with the legal identity of the woman being totally merged with that of her husband. As a result, her rights were often subordinated to those of her husband and she was laden with numerous marital disabilities. As far as any custodial rights were concerned, Blackstone stated the law to be that the mother was "entitled to no power (over her children), but only to reverence and respect." 1 W. Blackstone, Commentaries on the Law of England 453 (Tucker ed. 1803).

By the middle of the 19th century, the courts of England began to question and qualify the paternal preference rule. This was due, in part, to the "hardships, not to say cruelty, inflicted upon unoffending mothers by a state of law which took little account of their claims or feelings." W. Forsyth, A Treatise on the Law Relating to the Custody of Infants in Cases of Difference Between Parents or Guardians 66 (1850). Courts reacted by taking a more moderate stance concerning child custody, a stance which conditioned a father's absolute custodial rights upon his fitness as a parent. Ultimately, by a series of statutes culminating with Justice Talfourd's Act, 2 and 3 Vict. c. 54 (1839), Parliament affirmatively extended the rights of mothers,...

To continue reading

Request your trial
161 cases
  • J.B. v. Cleburne County Dhr
    • United States
    • Alabama Court of Civil Appeals
    • May 2, 2008
    ...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)). Other factors the court may consider in making a custody determination include "the sex and age of the child, as well as ea......
  • Weldon v. Ballow
    • United States
    • Alabama Court of Civil Appeals
    • October 30, 2015
    ...standard, on the other hand, applies to resolve custody disputes only between fit contestants. See Ex parte Devine, 398 So.2d 686 (Ala.1981). This court acknowledges that a best-interests inquiry encompasses consideration of “the characteristics of those seeking custody, including age, char......
  • Daghir v. Daghir
    • United States
    • New York Court of Appeals Court of Appeals
    • June 17, 1982
    ...451 N.Y.S.2d 658, 436 N.E.2d 1260 reviewed many of those factors. A concise and complete list of factors is set forth in Devine v. Devine, 398 So.2d 686, 696-697 in which the Supreme Court of Alabama noted the importance of the sex and age of the child as factors to be considered, and direc......
  • Gallant v. Gallant
    • United States
    • Alabama Court of Civil Appeals
    • December 19, 2014
    ...a better custodian than a father for a child of tender years. The supreme court abolished the tender-years presumption in Ex parte Devine, 398 So.2d 686 (Ala.1981). We presume that the trial court knew that the tender-years presumption has been abolished and that it did not apply that presu......
  • Request a trial to view additional results
3 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT