RK v. RJ

• Decision Date: 06 September 2002
• Citation: 843 So.2d 774
• Parties: R.K. and C.K. v. R.J.
• Court: Alabama Court of Civil Appeals

843 So.2d 774

R.K. and C.K. v. R.J.

2000526.

Court of Civil Appeals of Alabama.

September 6, 2002.

Gregory M. Varner, Ashland, for appellants.

Donald R. Hamlin, Ashland, for appellee.

MURDOCK, Judge.

In July 2000, R.J. filed a petition in the Clay County Juvenile Court seeking custody of T.S.K, a minor child. Among other things, the petition alleged that in 1997, R.J. had been adjudicated the father of T.S.K. in a paternity proceeding brought by the child's mother, K.K.; that the mother had formally relinquished custody of the child to C.K. and R.K. (the child's maternal grandparents) in an August 1999 judicial proceeding of which R.J. had not received notice; and that under Ex parte Terry, 494 So.2d 628 (Ala.1986), he was entitled to custody of the child. The juvenile court awarded R.J. (hereinafter "the father") and the maternal grandparents joint custody of the child pendente lite and vacated its previous judgment awarding custody of the child to the maternal grandparents.

After an ore tenus proceeding, the juvenile court entered a judgment awarding the father custody of the child and granting the mother visitation under the supervision of the maternal grandparents. In its judgment, the juvenile court stated its reasons for awarding custody of the child to the father:

"The father of the minor child is not an unfit person to have custody, nor has he voluntarily relinquished his right of custody of the minor child. See Ex parte D.J., 645 So.2d 303 (Ala.1994).

"While this Court respects and highly commends the maternal grandparents for their unselfish efforts in caring for the minor child, nevertheless, the father, having been determined not to be unfit, is entitled to custody as a matter of law, as against the maternal grandparents.... Ex parte Terry, 494 So.2d 628 (Ala.1986); Ex parte D.J., supra."

(Emphasis added.)

The maternal grandparents appeal from the judgment awarding the father custody of the child.¹ The mother has not appealed. This court's review of the trial court's judgment is governed by the following standard set forth by our Supreme Court:

"Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court.

"`[O]ur standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow.'"

Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994) (citations omitted; quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ. App.1993)). However, "[q]uestions of law are not subject to the ore tenus standard of review," Reed v. Board of Trustees for Alabama State University, 778 So.2d 791, 793 n. 2 (Ala.2000), and a trial court's conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993).

In a child-custody case, the primary concern is the best interests and welfare of the child. E.g., McKinney v. Alabama Dep't of Pensions & Sec., 475 So.2d 568 (Ala.Civ.App.1985); Price v. Price, 440 So.2d 1110 (Ala.Civ.App.1983); Dale v. Dale, 54 Ala.App. 505, 507, 310 So.2d 225, 227 (Ala.Civ.App.1975). Indeed, our law's long-standing recognition of a presumption of custody in favor of a natural parent has always been premised upon the best interests of the child:

"The law devolves the custody of infant children upon their parents, not so much upon the ground of natural right in the latter, as because the interests of the children, and the good of the public, will, as a general rule, be thereby promoted. It is a fair presumption, that so long as children are under the control of their parents, they will be treated with affection, and their education and morals will be duly cared for."

Striplin v. Ware, 36 Ala. 87, 89 (1860) (quoted with approval in Ex parte D.J., 645 So.2d 303, 305 (Ala.1994)).

It is on the basis of the principles reflected in Striplin v. Ware that our courts have articulated a "prima facie right" on the part of a natural parent to the custody of his or her child. As our Supreme Court explained in Ex parte Mathews, 428 So.2d 58, 59 (Ala.1983), this "prima facie right of a natural parent to the custody of his ... child, as against the right of custody in a nonparent, is grounded in the common law concept that this primary parental right... is in the best interest ... of the child as a matter of law." See generally Jackson v. Farmer, 247 Ala. 298, 300, 24 So.2d 130, 132 (1945) (recognizing that "the prima facie right to the custody of a child is always in the parents over all other persons is well-nigh universally recognized," "[b]ut it is equally well established that this prima facie right of the parent is not an absolute one, but that the question of prime importance is the welfare of the child, which becomes the ward of the court").

It was thus toward the end of serving the best interests and welfare of the child that our Supreme Court stated in Ex parte Terry that the prima facie right of a natural parent to the custody of his or her child is such that "`absent a showing of voluntary forfeiture of that right, ... [that right] can be overcome only by a finding... that the parent seeking custody is guilty of such 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.'" Ex parte Terry, 494 So.2d 628, 632 (Ala.1986) (quoting Ex parte Mathews, 428 So.2d at 59).

The "voluntary forfeiture" exception to a natural parent's prima facie right to custody recognizes that a parent's voluntary forfeiture of his or her child tends to rebut the presumption that the parent in question will best provide the love, care, security, and upbringing the child needs. Concomitantly, it is a reflection of the well-established principle that "ties of affection resulting from years of association between the child and its custodian" are relevant to a determination of the child's best interests. See generally Dale v. Dale, 54 Ala.App. 505, 507, 310 So.2d 225, 227 (Ala. Civ.App.1975); McGrady v. Brown, 230 Ala. 484, 161 So. 475, 476 (1935) ("`relinquishment of ... custody to another and continued acquiescence therein are matters to be considered by the court in determining the question of prime importance— the welfare of the child'") (quoting Payne v. Payne, 218 Ala. 330, 331, 118 So. 575, 576 (1928)). As this court explained in Borsdorf v. Mills:

"To tear [a child] from his home and those he knows as his parents and the source of love, safety and security merely to give sanction to a principle of priority of right is unconscionable. The principle of priority of right of a parent to custody is founded upon the premise that because of a blood relation and instinct, such parent will better love and care for a child than one not so related. Such premise may be theoretically correct but practical experience has often proved it incorrect. The bonds of love between parent and child are not dependent upon blood relation and instinct, but may be forged as strongly in the crucible of day to day living. Out of the actual relationship of parent and child love grows. It is not merely a product of the biological function of conception and giving birth. To give paramount consideration to the principle of parental priority or ownership in custody decisions would often be an anathema to the best interest of the child."

49 Ala.App. 658, 661-62, 275 So.2d 338, 341 (Ala.Civ.App.1973) (quoted in part with approval in Brill v. Johnson, 293 Ala. 435, 437, 304 So.2d 595, 597 (Ala.1974) (Bloodworth, J., concurring specially, and joined by five members of the Court)).²

Our Supreme Court explained in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), that:

"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."

455 So.2d at 865 (emphasis added). The McLendon court also recognized that a parent's prima facie right to custody does not apply if the parent's unfitness is reflected in a "decree removing custody from the natural parent and awarding it to a nonparent." 455 So.2d at 865.³ Thus, if the natural parent has abandoned his child, or custody has been awarded to a nonparent, the question of what custodial arrangement thereafter will be in the child's "best interest" is examined without a presumption in favor of the parent.

Further, where there has been a voluntary forfeiture of a child or a judgment awarding custody of the child to a nonparent, and the custodian has "`acted upon'" his or her newfound custody "`to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless [he] can show that a change of the custody will materially promote [his] child's welfare.'" 455 So.2d at 865 (quoting Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1976)) (emphasis added). As the McLendon Court explained, this heightened burden of proof on the natural parent is based upon a "`rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child's healthy growth into adolescence and adulthood.'" 455 So.2d at 865 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)).⁴

In the present case, the grandparents contend first that the juvenile court erred in giving the father the benefit of the parental presumption described in Terry. The grandparents argue that the father abandoned, or voluntarily forfeited, the child and...