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04/28/95 C.C. AND V.C. v. A.G. (IN MATTER M.G.

April 28, 1995


Appeal from Etowah Juvenile Court. (JU-89-178). William D. Russell, TRIAL JUDGE.

Rehearing Denied June 2, 1995, . Certiorari Denied August 4, 1995.

Crawley, Judge, Robertson, P.j., and Thigpen, Yates, and Monroe, JJ. concur.

The opinion of the court was delivered by: Crawley


This is a custody dispute between the father and the maternal grandparents.

In April 1989, the juvenile court found M.G. to be a dependent child, removed custody of the child from the parents, and awarded custody to C.C. and V.C., the maternal grandparents. In November 1990, A.G., the father, filed a petition in the juvenile court requesting custody of the child. In December 1991, the juvenile court allowed the father restricted visitation supervised by DHR, conditioned on his attending further substance abuse counseling. In January 1993, the juvenile court ordered continued custody with the grandparents. In March 1993, the father petitioned for custody of the child. In May 1994, the juvenile court awarded the father custody of the child and granted the grandparents visitation rights. The grandparents filed a post-judgment motion, which the juvenile court denied. The grandparents appeal.

The grandparents argue that the juvenile court erred in awarding custody of the child to the father.

In child custody cases, the trial court's judgment is presumed correct, and its judgment will not be reversed absent a plain and palpable abuse of discretion. Ex parte Jones, 620 So. 2d 4, 7 (Ala. 1992). Although a natural parent has a prima facie right to custody of his child, the presumption favoring a natural parent does not apply in this case, because a prior judgment had removed the child from the father's custody and awarded custody to nonparents. Ex parte McLendon, 455 So. 2d 863, 865 (Ala. 1984). To regain custody, the parent must prove that the child's best interests will be materially promoted by placing custody with the parent and that the change in custody will outweigh the disruption caused by uprooting the child. Id.

The juvenile court, in its order awarding custody to the father, properly explained the father's burden for a modification of custody, as follows:

"The father has presented adequate evidence that his lifestyle and environment have radically improved. However, that alone is not enough. Under the standard of Ex parte McLendon, the father must clearly demonstrate by the preponderance of the evidence that a change of custody would materially promote the welfare of the child. According to McLendon, a natural parent has a prima facie right to the custody of his child. However, this presumption does not apply in a modification case such as this where a prior decree removed custody from the natural parent and awarded it to a non-parent. The McLendon case requires that a party seeking modification prove to the Court's satisfaction that material changes affecting the child's welfare since the last custody decree demonstrate that custody should be disturbed to materially promote the child's best interest."

The juvenile court concluded: "The positive good brought about by this modification more than offsets the inherently disruptive effect caused by uprooting the child." We must determine if the father met the strict burden of proof required for modifying custody from a nonparent to a parent.

The father admits that he had substance abuse problems at the time custody of the child was awarded to the grandparents. He further testified that he underwent a rehabilitation program and that he has been sober for several years. At the time of the initial hearing, the father had been employed in the same job for a few years. At the time of the hearing on the grandparents' post-judgment motion, the father had changed employers and had received a salary increase. The father's wife testified that they have been married for three years and that her son lives with them. She further testified that they would give the child a loving home and that the family could afford to have the child in their home.

Around the same time he lost custody of the child, the father was discharged from the National Guard because of excessive absences. The father reenlisted a few years ago, and a supervisor of his unit testified that the father is a conscientious Guard member, and no problems have been reported regarding the father's work performance. The father testified that he recently received a promotion in his National Guard unit.

The record reflects that the father's house has three bedrooms and living and kitchen areas, and is not subject to a mortgage. A juvenile court report made by DHR stated that the father had "improved his situation immensely," and the DHR caseworker thought the father should regain custody of the child. This report further stated that the grandparents are ...

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