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09/09/94 MATTER C.S. v. D.L.N.S. AND R.W.S.

September 9, 1994

IN THE MATTER OF C.S., A MINOR CHILD, W.L.S. AND P.E.S.
v.
D.L.N.S. AND R.W.S.



Appeal from the Madison Circuit Court. (DR-93-1373). Thomas Younger, Trial Judge.

Released for Publication December 6, 1994.

Thigpen, Robertson, P.j., and Yates, J., concur.

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

This case involves the denial of a custody petition filed by the paternal grandparents.

In August 1993, W.L.S. and P.E.S. (paternal grandparents) filed a petition in the Circuit Court of Madison County for custody of their grandson, C.S. The petition alleged that the child had been abandoned to their custody for the previous 2 1/2 years, and that the mother was unfit and unable to properly care for the child. They requested and were granted an ex parte award of temporary custody, pending a final hearing. Upon receiving the ore tenus evidence, the trial court dissolved the temporary custody order, and it ordered custody returned to the child's mother. The grandparents appeal.

The record reveals certain relevant facts. R.W.S. (father) and D.L.N.S. (mother) were not divorced, but have lived separately since approximately July 1990, and they have three children. Although divorce proceedings were apparently commenced in North Carolina, no divorce judgment or custody order has been entered by any court, except a North Carolina judgment awarding the mother custody of the children, pendente lite. At the time of the hearing, the parties were still married, although they were separated pursuant to the North Carolina pendente lite order. There was testimony that prior to the separation, the marriage was afflicted by alcohol, drug, and spousal abuse. The mother sought treatment for alcohol abuse, and both parents were arrested on at least one occasion for drug-related charges.

Following their separation, the father moved to Florida and the mother eventually moved into her parents' home in Georgia. The mother testified that the father has paid very little child support, and that he owes approximately $28,000 in past-due support.

It appears that due to difficulties which C.S. was having with the separation and with living with the maternal grandmother, and the financial difficulties of the family unit, both parents agreed that C.S. should be moved from the home of the maternal grandparents, and the paternal grandparents agreed to accept him into their home and enroll him in school in Madison County, Alabama. Apparently, there was no Discussion regarding how long C.S. would remain with the grandparents. In the spring of 1991, C.S. moved to Huntsville with the paternal grandparents, who enrolled him in a private educational institution and sought specialized counseling. Additional tutoring was obtained for C.S., and over the course of the next 2 1/2 years, C.S.'s educational performance improved. Additionally, his emotional well-being improved, as exhibited by improvements in his communicative skills and increased interaction with peers and teachers.

It is undisputed that the father contributed nothing for the support of his children, and that the paternal grandparents have provided the bulk of the support for C.S. The mother made a partial payment on private school tuition of approximately $300 at the request of the paternal grandmother, and the mother provided other intermittent support for the children, such as airline tickets for them to visit their father. The grandparents admit that with the exception of their request for tuition assistance, they have never asked for financial assistance for C.S. Additionally, the grandparents assert that neither parent has expressed much interest in C.S.'s educational performance or in his upbringing. Even so, there was testimony of C.S.'s visits with his mother and sisters, as well as numerous telephone visits. Subsequently, the mother obtained employment and moved into a two-bedroom apartment with the other two children. During this period, the mother's father died and she inherited some money and other assets. The grandparents complied with the mother's request to prepare C.S. to return to live with her and his sisters.

The grandparents assert that the mother had promised to build a home, and that C.S. would have his own room; however, they contend that she spent her inheritance and could not fulfill that promise. The mother denies that she has spent all of the money, and contends that the estate is not settled, and that she intends to build a home when it is settled and the proceeds distributed. The mother testified regarding her commitment to lease a larger apartment upon C.S.'s return. The grandparents assert that her present apartment is inadequate, and that she shares the apartment with her boyfriend, although she is not married to him. The mother admits to the relationship, but denies that her boyfriend stays overnight while the children are there, asserting that he has his own separate living arrangements. Additionally, she testified that she intends to complete the divorce proceedings, albeit she was prompted to do so partly by these proceedings.

After hearing the evidence, the trial court made the following findings of fact:

"1. That in or about April of 1991 the [parents] did enter into an agreement [for the paternal grandparents] to accept the temporary custody of and to provide for the temporary care, maintenance and support of the minor child [C.S.].

"2. That in or about April of 1991 the [mother] permitted [the] paternal grandparents ... to have the ...


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