Ex parte McLendon
| Decision Date | 06 July 1984 |
| Citation | 455 So.2d 863 |
| Parties | Ex parte Mr. and Mrs. W.R. McLENDON. (re Mr. and Mrs. W.R. McLENDON v. John William McLENDON and Ruby Ann McLendon). 83-595. |
| Court | Alabama Supreme Court |
Al Seale and Frances R. Niccolai of Seale, Marsal & Seale, Mobile, for petitioner.
W.A. Kimbrough, Jr., Mobile, for respondent.
This is a child custody case. The child was born in 1977. The parents of the child were divorced in 1980. By agreement of the parties, which was made a part of the divorce decree, custody was awarded to the paternal grandparents, who had already been caring for the child. In 1982, the mother picked up the child for visitation and took her to California, the mother's new home, without advising the grandparents. The grandmother, after obtaining a California court order, regained custody of the child. She then petitioned the Circuit Court of Mobile County for suspension of the mother's visitation rights. The mother counterclaimed, seeking a modification of the decree to regain custody. Following an ore tenus hearing, the trial court awarded custody to the mother, subject to the liberal visitation rights of the grandparents. The grandparents appealed, and the Court of Civil Appeals affirmed the judgment. McLendon v. McLendon, 455 So.2d 861 (Ala.Civ.App.1984). Rehearing was denied and the grandparents petitioned for a writ of certiorari. We granted the writ under A.R.A.P. Rule 39(c)(4).
At the time of the hearing, the child was just under six years old and had been living with the grandparents since she was eleven months old, except for a period of about two months when she was with her mother in Tennessee. The child has remained with the grandparents during the pendency of this appeal because the trial court granted the motion of the grandparents for a stay of the custody award.
The mother's visits with the child over the past five years have been infrequent, although there is evidence of some extenuating circumstances, which may account for the lapses. It is undisputed that the grandparents provide a good home for the child and that the grandmother has been a good mother figure. The grandparents have provided substantial medical care for the child, nursing her through several illnesses.
It is also undisputed that the mother has remarried and is now able to provide a stable and wholesome environment for the child. She and her new husband have one child of their own and have an income adequate to support both children. The mother's new husband testified unequivocally that he would assist in the care and support of the child, and that he wanted custody to be returned to the mother. He and the mother agree that the grandparents can have all reasonable visitation rights and that, if they can afford to, they will send the child to the grandparents in the summer.
A natural parent has a prima facie right to the custody of his or her child. However, this presumption does not apply after a voluntary forfeiture of custody or a prior decree removing custody from the natural parent and awarding it to a non-parent. Ex Parte Mathews, 428 So.2d 58 (Ala.1983); Ex Parte Berryhill, 410 So.2d 416 (Ala.1982); Horton v. Gilmer, 266 Ala. 124, 94 So.2d 393 (1957); Lewis v. Douglass, 440 So.2d 1073 (Ala.Civ.App.1983).
In returning custody to the mother, the trial court may have incorrectly given the mother the benefit of this presumption. The trial court apparently misconstrued our holding in Ex Parte Berryhill, supra, wherein this Court said that in a contest between a natural parent and a non-parent for custody of a child, the natural parent has a superior right to custody. The Court of Civil Appeals correctly noted that the holding of Berryhill has no application when there is a prior decree removing custody from the parent. The superior right of the mother in this case was cut off by the prior decree awarding custody to the grandparents. McLendon v. McLendon, 455 So.2d at 862.
The correct standard in this case is:
"Where a parent has transferred to another [whether it be a non-parent or the other parent], the custody of h[er] infant child by fair agreement, which has been acted upon by such other person to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless [s]he can show that a change of the custody will materially promote h[er] child's welfare."
Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947), quoting the Supreme Court of Virginia, Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687, 40 L.R.A. 623 (1898).
Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976).
It is not enough that the parent show that she has remarried, reformed her lifestyle, and improved her financial position. Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966); Abel v. Hadder, 404 So.2d 64 (Ala.Civ.App.1981). The parent seeking the custody change must show not only that she is fit, but also that the change of custody "materially promotes" the child's best interest and welfare.
For several years now, the Court of Civil Appeals has stated that the parent seeking custody has the burden of showing a change in circumstances which adversely affect the welfare of the child. Lewis v. Douglass, 440 So.2d 1073 (Ala.Civ.App.1983); Simpson v. Gibson, 420 So.2d 782 (Ala.Civ.App.1982); Taylor v. Taylor, 387 So.2d 849 (Ala.Civ.App.1980); Keith v. Keith, 380 So.2d 889 (Ala.Civ.App.1980). This Court, in 1975, expressly rejected that standard in favor of the standard applied today. We held that "the use of the word 'adversely' limits the law as stated in our cases." Ford v. Ford, 293 Ala. 743, 310 So.2d 234 (1975). We reaffirm that holding today and further hold that all contrary decisions, including the above-cited ones, are overruled to this extent.
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