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02/03/95 LASHARN WHITT v. ANGELA NEVELS PEOPLES

February 3, 1995

LASHARN WHITT
v.
ANGELA NEVELS PEOPLES



Appeal from Tuscaloosa Circuit Court. (DR-93-89). Richard Dorrough, Trial Judge.

Rehearing Overruled March 10, 1995, . Released for Publication May 24, 1995.

L. Charles Wright, Retired Appellate Judge. All the Judges concur.

The opinion of the court was delivered by: Wright

WRIGHT, Retired Appellate Judge

Tameka Whitt was born in 1986 to LaSharn Whitt and Angela Nevels. The parents were high school students at the time of the birth. They never married. The child lived with her mother for approximately eighteen months. The mother and the paternal grandparents agreed that the paternal grandparents would take care of the child while the mother earned her nursing degree and became settled.

In 1988 the paternal grandparents adopted the child. The mother was not aware of the adoption until 1990. Upon discovery of the information, the mother sought legal help to have the adoption set aside. The adoption was finally set aside in January 1993. The mother took custody of the child at that time.

In February 1993 the father petitioned the circuit court for an ex parte temporary custody order, which was granted. The court subsequently held a custody hearing. Following the hearing, the court granted custody to the father. The mother filed a motion for new trial, which was granted.

A Judge from another circuit was assigned the case. Following oral proceedings, the court awarded custody to the mother.

The father appeals and asserts that such an award was made in error. He further insists that the trial court erred in utilizing the "best interests of the child" standard rather than the more stringent standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984).

If there is a judgment granting custody to one parent, that custody will be changed only if it would "materially promote" the child's welfare. Ex parte McLendon. In this case there is no valid judgment granting custody to one of the parties. The McLendon standard is, therefore, not applicable. Where both parents come before the trial court equally to request an initial custody determination, the appropriate standard is the "best interests of the child." Poe v. Capps, 599 So. 2d 623 (Ala. Civ. App. 1992).

In an initial custody determination the parties stand on equal footing without a favorable presumption to either. Williams v. Williams, 602 So. 2d 425 (Ala. Civ. App. 1992). In determining which parent should have custody, the paramount consideration is the health, safety, and well-being of the child. Williams. An award of child custody is a matter within the discretion of the trial court. Williams.

This court presumes that the trial court correctly applied its discretionary authority to adJudge the child's best interests. Williams. The presumption arises because the trial court is in the best position to see and hear the witnesses. Williams. It is our duty to affirm the decree if it is supported by credible evidence. Williams.

In awarding custody to the mother, the trial court made the following findings:

"Although the child has been in the physical custody of the father and/or his parents in recent years, she has had substantial contact with the natural mother and is clearly cognizant of her natural family relationships. The child is ...


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