Morris, In re
| Decision Date | 11 June 1986 |
| Citation | 494 So.2d 87 |
| Parties | In re the Matter of Bridgette Lachae MORRIS, a minor. Elaine MORRIS v. Janet M. PRESSLEY and James W. Mims, guardian ad litem. Civ. 5272. |
| Court | Alabama Court of Civil Appeals |
Michael W. Landers of Bell and Landers, Sylacauga, for appellant.
Andrew W. Redd of Machen, Redd & Dobson, Sylacauga, for appellee.
This is a child custody and child visitation case. The issue on appeal is whether the court erred when it denied the grandmother's petition for custody of the child or for visitation privileges with the child.
The case involves these facts: A child, Bridgette Lachae' Morris, was born to Janet Pressley (mother) in 1979. In 1981 the mother left the child with Elaine Morris, the child's grandmother. The grandmother filed a petition for temporary custody of the child in July 1981. By agreement of the parties and with the mother's consent, the Juvenile Court of Talladega County, granted the temporary custody of the minor child to Elaine Morris. The purpose of securing legal custody in the grandmother was to qualify her for medicaid benefits.
Temporary custody of the child continued to be with the grandmother until February 1985. However, the child had been in the physical custody of the mother since September 1983, with the grandmother's consent. After an altercation between the mother and grandmother over the child, the mother filed a petition to regain legal custody of the child. An order was entered by the court, placing temporary custody of the child with the mother pending a final hearing. After an ore tenus hearing, the court entered an order restoring the custody of the minor child to the mother. This order also denied the grandmother visitation privileges with the child. The grandmother appeals.
The grandmother's first contention on appeal is that the welfare and best interests of the child would best be served by placing the child in her custody. She also asserts that the mother has failed to meet her burden of showing changed circumstances. She further contends that pursuant to § 30-3-4, Code of Alabama 1975 visitation rights for grandparents have been made discretionary with the trial court and that the court abused this discretion in not allowing her visitation privileges. She asserts that a common-law right of visitation exists for grandparents.
When a court hears evidence ore tenus, its judgment is presumed to be correct, and this court will not reverse that judgment unless it is so unsupported by the evidence as to be plainly and palpably wrong. Lovell v. Department of Pensions and Security, 356 So.2d 188 (Ala.Civ.App.1978). A parent who has voluntarily relinquished custody and is attempting to regain custody must show that he is fit and that the change in custody materially promotes the best interest of the child. Wells v. Wells, 484 So.2d 1101 (Ala.Civ.App.1986); Nicholas v. Nicholas, 464 So.2d 527 (Ala.Civ.App.1985).
Although the grandmother disputes the fact that the child has been in the mother's custody since 1983, the evidence presented at trial supports that fact. The mother's situation has greatly improved since 1981 when she left the child with the grandmother. The mother's husband, Glen Pressley, is employed by Daniels Construction Company. His net income is over $2,000 monthly. The couple presently lives in a two-bedroom mobile home with a large yard. A social worker from North Carolina (where the mother and her husband presently reside) found that the mobile home in which the Pressleys live is clean and suitable for the child. The social worker also found that the child was in good health, was well cared for, and she observed that the child was affectionate and...
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