Appeal from Lawrence Circuit Court. (DR-83-14.02). Philip Reich, TRIAL JUDGE.
Rehearing Overruled January 6, 1995, . Rehearing Denied March 17, 1995. Certiorari Denied May 26, 1995.
Richard L. Holmes, Retired Appellate Judge. All the Judges concur.
The opinion of the court was delivered by: Holmes
HOLMES, Retired Appellate Judge
This is a child custody case.
Renea LouAllen (mother) and Jerry Wayne Bradford (father) were married, and a child was born of that marriage in September 1980. The parties were divorced in April 1981. Thereafter, the parties reconciled and were divorced a second time in March 1983. Pursuant to an agreement reached by the parties, the mother was awarded custody of the parties' minor child.
In January 1986 the parties' divorce decree was modified when the parties filed a joint petition to modify custody and entered into an agreement that the father would have custody of the minor child, subject to the visitation rights of the mother.
In May 1993 the mother filed a petition to modify custody, and the father filed an answer. A hearing was held in February 1994. The trial court issued an order, dated June 15, 1994, wherein it stated the following:
"The court finds that the [mother] has [failed] to show a set of circumstances that evidence that it would be in the best interest of the minor child...that his custody should be changed to his mother, and the court finds from the evidence that the child's best interests would be served by his remaining in the custody of his father and, further, that any benefit to be derived by award of custody to the mother would not offset the disruptive effect caused by uprooting the child from his present environment. It is therefore,
"ORDERED that the [mother's] petition for modification is due to be, and hereby is, denied."
The mother appeals. The father has not favored this court with a brief on appeal.
The mother argues that the trial court committed reversible error when, in this case, it applied the standard regarding the issue of child custody modification set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), rather than the standard set forth in Ex parte Terry, 494 So. 2d 628 (Ala. 1986).
The standard in Ex parte McLendon, 455 So. 2d 863, can be summarized in the following manner: A non-custodial parent no longer has a prima facie right to custody to his or her minor child when (1) that parent has voluntarily relinquished custody of the minor child (whether to the other parent or to a non-parent) or (2) there is a prior decree which has removed custody from the parent and awarded custody to a non-parent. If that non-custodial parent desires to reclaim custody of his or her minor child, the parent must demonstrate that such a change in custody will materially promote the minor child's welfare and best interests. Stated another way, that non-custodial parent must present evidence to demonstrate that the benefits from the change in custody will offset the disruptive effect caused by uprooting the minor child from his or her present environment.
The standard in Ex parte Terry, 494 So. 2d 628, can be summarized in the following manner: A non-custodial parent is not deprived of his or her prima facie right to custody of a minor child--except as against the custodial parent--when (1) there has been no prior decree awarding custody to a non-parent or (2) the trial court's decree, which awarded ...