Jones v. Webb
| Decision Date | 14 April 1988 |
| Parties | Valisha JONES v. Jessie J. WEBB. In the Matter of Antavious JONES. Civ. 6343. |
| Court | Alabama Court of Civil Appeals |
Charles M. Law, Montgomery, for appellant.
Larry L. Raby, Montgomery, for appellee.
This child custody case was initiated by a petition for change of custody filed by Jessie J. Webb, the natural father of six-year-old Antavious Jones. The child's mother is Valisha Jones. The parents of the minor child have never been married. The child was declared to be the son of Jessie J. Webb by the Montgomery County Circuit Court on June 13, 1983. In the same order the court awarded legal custody of Antavious Jones to his mother. In September 1987, the father filed a petition seeking change of custody. A hearing was held, and on January 12, 1988, the Montgomery County Circuit Court found Antavious Jones to be a dependent child, as defined by § 12-15-1, Code 1975 (1986 Repl.Vol.). The court then awarded custody of the child to the father.
Ordinarily, a judgment of dependency and subsequent transfer of custody of a child as provided for in § 12-15-71, Code 1975 (1986 Repl.Vol.), are governed by the child's best interests, such as the child's age, sex, health, and any emotional, social, and material needs. See Jensen v. Short, 494 So.2d 90 (Ala.Civ.App.1986). Both statute and case law seem clear that once dependency is determined, the trial court is authorized to make certain dispositions, including transferring the legal custody of a dependent child to a relative. Section 12-15-71, supra; Sanders v. Guthrie, 437 So.2d 1313 (Ala.Civ.App.1983). But the mother did not present any issue in this appeal concerning the adjudication of dependency. Instead, she contends that the proper standard is that required by Ex parte McLendon, 455 So.2d 863 (Ala.1984), which holds that a change of custody of a child must not only materially promote the child's best interest, but that evidence must be produced to overcome the "inherently disruptive effect caused by uprooting the child."
At first glance it would appear that a judicial determination finding a child dependent would obviate any necessity to apply the McLendon standard, the principal thrust of which concerns separating the child from his present custody arrangement in order to transfer custody to another. Certainly such situations exist, but in the instant case we are satisfied that McLendon does apply. Our consideration of all the matters before us convinces us that this case comes here more in the shape of a change of custody case than a determination of dependency case, even though the evidence tends to narrowly support the trial court's finding of dependency.
While we agree with the mother that McLendon provides the appropriate standard by which this custody transfer should be gauged, we do not agree that the burden required by McLendon was not met by the evidence presented to the trial court.
The record reveals that when legal custody of Antavious was awarded to his mother in 1983, an older sister was his only sibling. Since 1983, the mother has given birth to three other...
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