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AL: Court issues history-making decision in child custody case



 
 
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  #1  
Old August 1st 05, 06:59 PM
Dusty
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Default AL: Court issues history-making decision in child custody case

http://www.al.com/newsflash/regional...12266771326310
0.xml&storylist=alabamanews

Court issues history-making decision in child custody case

7/29/2005, 4:07 p.m. CT
By PHILLIP RAWLS
The Associated Press

MONTGOMERY, Ala. (AP) - A divided Alabama Supreme Court decided a child
custody dispute Friday with a history-making decision citing legal
precedent, the Bible, and parents' relationship with God.

A majority of the justices agreed the child should be raised by the maternal
grandparents, but to reach that conclusion, the nine justices issued seven
opinions in the case. That allowed each justice to offer an explanation of
why the case ended like it did.

Justice Tom Parker, who wrote a dissenting opinion, noted that in the more
than 7,100 cases in the Supreme Court's database, "this is the first case in
which Justices of the Court have issued seven separate opinions."

Their opinions totaled 100 pages, which is unusually long for the state's
highest court. The other decisions released by the Supreme Court Friday
averaged 30 pages.

The case involved a child born out of wedlock in April 1999 to a couple that
met while attending Narcotics Anonymous. No names were used in the case to
protect the child's identity, but the Supreme Court noted that it was from
Madison County.

The child lived primarily with its maternal grandparents although the mother
and father, who never lived together, shared custody until the mother
overdosed on heroin in October 2002. Then the father and maternal
grandparents shared legal custody.

In February 2003, while the child was living with the maternal grandparents,
the father sought full custody. Instead, a judge gave full custody to the
maternal grandparents and declared the father an unfit parent. The judge
cited many factors, including the father having so little contact with the
child that he didn't know the child's clothes size.

Five justices concurred with the lower court's decision, with Justice Lyn
Stewart noting that the father "had never spent 24 hours alone with his
son."

Citing Psalms 127:3-5, she wrote that children are a gift from God, but they
come with responsibilities.

"Rights must be claimed and responsibilities assumed or they may be
forfeited," she wrote.

In a lone dissent, Parker quoted from Romans 13:1-2, which says "there is no
authority except from God." Parkker wrote that God, not the state, has given
parents the rights and responsibilities to raise their children.

He said "courts should interfere as little as possible with parental
decision-making, instead deferring to parental authority whenever it has not
been fundamentally compromised by substantial neglect, wrongdoing or
criminal act."

Three justices - Harold See, Champ Lyons and Bernard Harwood - agreed with
the maternal grandparents having custody, but disagreed with the lower court
ruling finding the father unfit. See said the father should not have been
declared unfit because the maternal grandparents never raised that issue in
court.

Lyons wrote the lower court didn't give sufficient emphasis to recent
changes in the father's life, including getting a steady job and staying off
drugs.

"If this parent is unfit on the grounds here cited, in disregard of the
undisputed evidence of rehabilitation from his past mistake of drug abuse,
then the authority of the courts to declare parents unfit has been
dramatically expanded," Lyons wrote.
--
----------------------------------------------------
The only thing necessary for the triumph
of evil is for good men to do nothing.

Edmond Burke



  #2  
Old August 3rd 05, 01:07 AM
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Default

Here's the case:



2005 WL 1793345 (Ala.)
--- So.2d ---

Only the Westlaw citation is currently available.

NOT YET RELEASED FOR PUBLICATION.

Supreme Court of Alabama.
Ex parte G.C., JR.
(In re G.C., Jr.
v=2E
E=2EB. and D.B.).
No. 1040001.
July 29, 2005.

Background: Father, who shared joint physical custody of child with
maternal grandparents, filed petition seeking sole custody of child.
The Juvenile Court, Madison County, JU-02-1540.02, awarded sole custody
of child to maternal grandparents, subject to visitation rights of
father. Father appealed. The Court of Civil Appeals affirmed judgment
without opinion. Father filed petition for certiorari review.
Holdings: Upon grant of petition, the Supreme Court, Stuart, J., held
that:
(1) evidence supported finding that father voluntarily relinquished
custody of child to grandparents, thereby losing his prima facie right
to custody, and
(2) clear and convincing evidence supported finding that father was
unfit to assume care, custody and control of child.

Affirmed.

Stuart, J., filed specially concurring opinion, in which Nabers, C.J.,
Smith, and Bolin, JJ., joined.

Smith, J., filed specially concurring opinion, in which Nabers, C.J.,
Stuart, and Bolin, JJ., joined.

Bolin, J., filed specially concurring opinion, in which Nabers, C.J.,
Stuart, and Smith, JJ., joined.

See, J., filed opinion concurring in part and dissenting in part.

Lyons, J., filed opinion concurring in part and dissenting in part, in
which See and Harwood, JJ., joined.

Parker, J., filed dissenting opinion.


[1]

76D Child Custody
76DXIII Appeal or Judicial Review
76Dk913 Review
76Dk922 Questions of Fact and Findings of Court
76Dk922(1) k. In General. Most Cited Cases

In reviewing the record in a child custody case in which the evidence
is presented ore tenus, the Supreme Court is not permitted to reweigh
the evidence and to substitute its judgment for that of the trial
court.

[2]

76D Child Custody
76DXIII Appeal or Judicial Review
76Dk913 Review
76Dk922 Questions of Fact and Findings of Court
76Dk922(1) k. In General. Most Cited Cases

Supreme Court's review of a child custody case in which the evidence is
presented ore tenus is limited to whether there was sufficient evidence
to support the trial court's findings, and the Supreme Court will not
disturb the findings of the trial court unless those findings are
clearly erroneous.

[3]

76D Child Custody
76DXIII Appeal or Judicial Review
76Dk913 Review
76Dk920 k. Presumptions. Most Cited Cases

76D Child Custody
76DXIII Appeal or Judicial Review
76Dk913 Review
76Dk922 Questions of Fact and Findings of Court
76Dk922(2) k. Credibility of Witnesses. Most Cited Cases

A child custody determination of the trial court entered upon oral
testimony is accorded a presumption of correctness on appeal, and the
Supreme Court will not reverse unless the evidence so fails to support
the determination that it is plainly and palpably wrong; this
presumption is based on the trial court's unique position to directly
observe the witnesses and to assess their demeanor and credibility, and
this opportunity to observe witnesses is especially important in such
cases.

[4]

76D Child Custody
76DVIII Proceedings
76DVIII(B) Evidence
76Dk453 Presumptions
76Dk460 k. Presumption in Favor of Parent. Most Cited Cases

In a child custody dispute between a parent and a non-parent, the
parent has a prima facie right to custody over the non-parent; however,
this presumption does not apply in a case in which the parent
voluntarily forfeits his right to custody to a non-parent or where
there is a finding of unfitness on the part of the parent.

[5]

76D Child Custody
76DVIII Proceedings
76DVIII(B) Evidence
76Dk466 Weight and Sufficiency
76Dk469 k. Fitness or Conduct of Parent. Most Cited Cases

In a child custody dispute between a parent and a non-parent, any
finding that the parent is unfit must be based on clear and convincing
evidence.

[6]

76H Children Out-Of-Wedlock
76HII Custody
76Hk20.5 Evidence
76Hk20.7 k. Presumptions and Burden of Proof. Most Cited Cases

Evidence supported finding that father voluntarily relinquished custody
of child to maternal grandparents, thereby losing his prima facie right
to custody; father knew two months after child's birth that he was
child's biological father, but he waited until child was 16 months old
to legitimate child in probate court, father waited over two years from
time he had child legitimized to request custody of child, during which
time, with exception of six-month period when child resided with
mother, child resided with grandparents, father visited child
sporadically, did not assist in child's care, and abdicated all
decisions regarding child's health and welfare to mother and
grandparents, and father's alleged ignorance of the law did not justify
his failure to exercise his right to custody once he had child
legitimized.

[7]

76H Children Out-Of-Wedlock
76HII Custody
76Hk20.3 k. Particular Disputes. Most Cited Cases

76H Children Out-Of-Wedlock
76HII Custody
76Hk20.10 k. Modification. Most Cited Cases

If father, who had voluntarily relinquished custody of child to
maternal grandparents, and, thus, lost his prima facie right to custody
of child, sought custody of child in the future, he would have to prove
that he was a fit parent, that change in custody would materially
promote child's best interest, and that the benefits of modifying
custody would more than offset the inherently disruptive effect of
uprooting child. (Per Stuart, J., with three justices concurring and
one justice concurring in result.)

[8]

76H Children Out-Of-Wedlock
76HII Custody
76Hk20.4 k. Proceedings in General. Most Cited Cases

Trial court appropriately decided issue as to whether father was unfit
to assume custody of child after father had been found to have lost his
prima facie right to custody by voluntary relinquishment, in custody
dispute between father and maternal grandparents, though issue of his
unfitness as a parent had not been pleaded; father injected issue of
fitness into proceeding, when he averred in his motion for custody that
he was a fit parent in every respect and fully capable of caring for
child, there was extensive testimony concerning father's suitability to
serve as child's sole custodian, though no witness had labeled father
"unfit," and, thus, issue of fitness had been litigated. (Per Stuart,
J=2E, with three justices concurring and one justice concurring in
result.) Code 1975, =A7 12-15-1(17).

[9]

76H Children Out-Of-Wedlock
76HII Custody
76Hk20.3 k. Particular Disputes. Most Cited Cases

Clear and convincing evidence supported finding that father was unfit
to assume care, custody and control of child, in custody dispute
between father and maternal grandparents; father's voluntary
relinquishment of custody to grandparents was a primary factor in
indicating his unfitness, father ceased paying child support when
grandparents were caring for child, father's budget did not consider
expenses for caring for child, and father admitted that he chose to
pick up child on Saturday, rather than scheduled Friday night, for his
weekend visitation because he had a "big date." (Per Stuart, J., with
three justices concurring and one justice concurring in result.) Code
1975, =A7 12- 15-1(17).

[10]

76D Child Custody
76DXIII Appeal or Judicial Review
76Dk913 Review
76Dk922 Questions of Fact and Findings of Court
76Dk922(1) k. In General. Most Cited Cases

76D Child Custody
76DXIII Appeal or Judicial Review
76Dk913 Review
76Dk922 Questions of Fact and Findings of Court
76Dk922(2) k. Credibility of Witnesses. Most Cited Cases

The appellate court is not allowed to reweigh the evidence in a child
custody dispute between a parent and a non-parent, which turns, like
all disputed custody cases, on the trial court's perception of the
evidence; the trial court is in the better position to evaluate the
credibility of the witnesses, to consider all of the evidence, as well
as the many inferences that may be drawn from that evidence, and to
decide the issue of custody. (Per Stuart, J., with three justices
concurring and one justice concurring in result.)
Petition for Writ of Certiorari to the Court of Civil Appeals (Madison
Juvenile Court, JU-02-1540.02; Court of Civil Appeals, 2030309).


STUART, Justice.
*1 G.C., Jr. ("the father"), appealed to the Court of Civil Appeals
from a judgment awarding custody of his minor son, J.G.C. ("the
child"), to E.B. and D.B. ("the maternal grandparents"). The Court of
Civil Appeals affirmed the judgment without an opinion. G.C. v. E.B.
(No. 2030309), --- So.2d ---- (Ala.Civ.App.2004) (table). We granted
the father's petition for certiorari review.
The evidence in the trial court revealed the following facts. The
father and L.B. ("the mother") met at a Narcotics Anonymous meeting in
1998. They began a relationship that eventually resulted in the
mother's pregnancy. They ended the relationship before the mother
informed the father that she was pregnant; however, the father became
aware that the mother was pregnant before the birth of the child in
April 1999. The father and mother never married. At the time of the
child's birth, the father was working out of town. The father saw the
child two weeks after the child was born. Two months after the birth of
the child, the father requested a paternity test, which established
that he was the biological father. The mother and the child lived with
the maternal grandparents for several months after the child was born.
At some point, the mother moved out of the maternal grandparents' house
and left the child with the maternal grandparents.
The father visited the child several times during the first year and
was present for the child's first birthday. The father did not visit
with the child much during the second year because he was working out
of state. In August 2000, 14 months after he had learned that he was
the biological father of the child, the father filed in the probate
court a declaration of legitimation, requesting that he be determined
to be the child's father. The trial court issued the order of
legitimation, and the child's last name was changed to the father's.
In February 2002, after the mother forcibly removed the child from the
maternal grandparents' home, the maternal grandparents sought temporary
custody of the child. In April 2002, the trial court entered a pendente
lite order, awarding the mother custody of the child and awarding the
maternal grandparents specified visitation. The father received notice
of that order and subsequently intervened in the proceedings. As a
result, he was awarded regularly scheduled visitation with the child.
In August 2002, the mother, father, and maternal grandparents entered
into an agreement, pursuant to which the mother and the father were to
have joint legal and physical custody of the child and the maternal
grandparents were to have specific visitation rights. The trial court
entered an order adopting the agreement. In October 2002, while the
child was visiting with the father, the mother overdosed on heroin and
was unable to care for the child. As a result, at the urging of the
maternal grandparents, the father and the maternal grandparents filed a
joint petition to modify custody, seeking to remove shared custody from
the mother. The trial court entered a pendente lite order, awarding
joint physical custody of the child to the father and the maternal
grandparents.
*2 In February 2003, the father filed a petition seeking full custody
of the child, claiming that the maternal grandparents had taken the
position that their right to the child was superior to his. Following a
hearing at which evidence was presented ore tenus, [FN1] the trial
court awarded sole custody of the child to the maternal grandparents,
subject to the visitation rights of the father. In denying the father's
request for full custody, the trial court, in an order dated December
10, 2003, concluded that the father had voluntarily relinquished
custody of the child to the maternal grandparents and that he was unfit
to have custody. The trial court made the same findings regarding the
mother. The mother, however, does not dispute those findings.
Specifically, the trial court stated in its order:
"Despite the petition of the grandparents requesting that they be
granted joint custody with the father, the father requests that he be
granted primary custody of the child.[ [FN2]] This court cannot grant
such a request due to a record replete with evidence that points to the
father's unfitness and voluntary abandonment of this child. As to the
father, the record reflects that:
"1. The father was not present at the birth of the child. He claims
that he was out of town on business. He did not even tell his mother
about the child until the child was 7 months old. He and the mother
never lived together. The father chose not to legitimize the child
until about a year and five months after the birth of the child,
claiming he didn't have the $200.00 to pay for it then. The first time
he met the [maternal grandparents], which was when [the child] was
around 18 months old, he did not even state his last name.
"2. The father lived at home with his parents till he was twenty-four
years old. He moved out to live with a friend, [W.H.] He lived with
[W.H.] for three or four months and moved back home. He lived at home
for another year and a half then moved in with Mr. [T.] He has been
back home for the past year living with his mother. He says he will
move out but he doesn't know when--he has made no plans to do so.
"3. The father has a history of quitting jobs after three or four
months. He has finally maintained a job with his current employer ...
for a little over two years now, although he is no longer working as a
business installer. The father claims to have saved $1,200.00 since
February of 2003, but he did not have a plan for his money. Although he
requested full custody of his child, he had never thought to budget for
[the child]'s clothes or school. When questioned about his monthly
expenses, the father stated that he pays his mother $50.00 per month to
live in her home, pays for car insurance, his cell phone bill, and for
food and gas. He sold his own car and now drives his father's. After
going through his expenses and income the father learned that he had
over $4,200.00 from February that he could not account for. The father
is oblivious at age 30 about where his money goes. The evidence is
clear that he has never had to manage his money because his parents
loaned [him money] and paid debts for him for years.
*3 "4. Upon cross-examination the father admitted that he had abandoned
a former girlfriend when she got pregnant. She later lost the baby. He
admitted that he might have abandoned the child, as well. His current
girlfriend's name is 'Winter.' He could not remember her last name. He
met her at her place of employment--a Waffle House [restaurant]. He
recently gave up an opportunity to have visitation with [the child] to
go out on a date with this girlfriend.
"5. The father had a full month in the summer of 2003 to have
visitation with his son. Even with accommodations made with the
[maternal grandparents], the father chose not to exercise the
visitation, claiming that he had no more vacation days left at work and
he did not want to put [the child] in daycare. The evidence further
shows that the father never exercises visitation with [the child]
alone. Until the last hearing in September, the father has never spent
24 hours alone with his own son.
"6. The father admits that this move will traumatize [the child]. The
father also admits that [the child] thinks of the [maternal
grandparents] as his parents. The father fully admits that he has
waited until now to assert any rights he may have to this child. He
admits that his own mother took the active role in issues involving
[the child] until February of 2003. The father admits that he has no
idea what size clothes [the child] wears because his mother likes to
buy the clothes for [the child] and goes with him and picks them out
and she knows the sizes. The father admits that he still relies on the
[maternal grandparents] to see to [the child]'s medical needs, i.e.
taking him to the doctor, etc., because he (the father) 'has to work';
despite admitting that he has time to pick up a friend and eat
breakfast before work.
"7. Finally, the father agreed in his testimony that [the child] should
not be taken out of the [maternal grandparents'] home at this time and
placed in his custody. Even ... the paternal grandmother admitted that
the [maternal grandparents] were the ones that made [the child] a top
priority, as she noted that she and her son were preoccupied with her
husband's terminal illness.
"Based on the above, the court finds by clear and convincing evidence
that both parents voluntarily abandoned their parental responsibilities
to this child, and as a result [the child] has no true parental bond
with either of them. The mother now clearly recognizes this fact[;] the
father recognizes that he wasn't there for all those years, but states
that he wants to be there now.
"Unfortunately, those years have made all the difference in [the
child]'s world because the child's security and bonding to the maternal
grandparents took place during the time that the father was not
interested in asserting his parental rights. That's the whole point of
the emphasis being added by our Supreme Court in its opinion in [Ex
parte] Terry, [494 So.2d 628 (Ala.1986) ]. That is why there are
exceptions to the 'Terry ' standard.
*4 "This court finds by that same clear and convincing evidence that
this father is currently unfit to have custody of any child. Based on
the totality of the evidence the father can hardly manage himself, much
less the addition of a child. He hasn't a clue where his money goes,
his mother continues to dominate most if not all of the aspects of his
life, he cannot manage this four-year-old child alone and has succeeded
in giving this court not one positive reason to place the child in his
custody. The father at age 30 appears extremely immature, concerned
with satisfying his own personal needs, easily dominated and influenced
by others and incapable of rearing a child without tremendous
assistance from others, which would most likely include his mother,
with whom he admits to having a very rocky relationship. The court
further finds that based on the evidence presented, the child tolerates
the paternal grandmother but has been made fearful of her by her loud
and threatening exchanges in front of him."
As noted previously, we granted the father's petition for certiorari
review to determine whether there was clear and convincing evidence
that the father was unfit to have custody or that he had voluntarily
relinquished custody of the child to the grandparents.
[1][2][3] In reviewing the record in a custody case in which the
evidence is presented ore tenus, this Court is not permitted to reweigh
the evidence and to substitute its judgment for that of the trial
court. Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996). Our review in such
a case is limited to whether there was sufficient evidence to support
the trial court's findings. We will not disturb the findings of the
trial court unless those findings are clearly erroneous. 676 So.2d at
1324. Indeed, as Chief Justice Moore, writing for the Court, stated in
another child-custody proceeding:
"When this Court reviews a trial court's child-custody determination
that was based upon evidence presented ore tenus, we presume the trial
court's decision is correct: ' "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...." ' Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting
Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations
omitted). This presumption is based on the trial court's unique
position to directly observe the witnesses and to assess their demeanor
and credibility. This opportunity to observe witnesses is especially
important in child-custody cases. 'In child custody cases especially,
the perception of an attentive trial judge is of great importance.'
Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981)."
Ex parte Fann, 810 So.2d 631, 633 (Ala.2001)(emphasis added).
[4][5] In a custody dispute between a parent and a nonparent, the
parent has a prima facie right to custody over the nonparent. Ex parte
Terry, 494 So.2d 628 (Ala.1986). This presumption does not apply,
however, in a case in which the parent voluntarily forfeits his or her
right to custody to a nonparent or where there is a finding of
unfitness on the part of the parent. Any finding that the parent is
unfit must be based on clear and convincing evidence. 494 So.2d at 633.
*5 We address first whether the father has voluntarily relinquished
custody of the child. The child has never resided with the father. In
Ex parte D.J., 645 So.2d 303 (Ala.1994), this Court determined that an
examination of whether a father of a child born to unmarried parents
relinquished his right to custody of the child must begin at the point
in time when the father was legally declared by a court to be the
father of the child. See also R.K. v. R.J., 843 So.2d 774
(Ala.Civ.App.2002); and R.O.M. v. B.B., 854 So.2d 98, 105
(Ala.Civ.App.2003) (Murdock, J., concurring specially).
[6] The record contains ample evidence to support the trial court's
finding that the father had voluntarily relinquished custody of the
child to the maternal grandparents. A paternity test conducted two
months after the birth of the child established that the father was the
child's biological father. Despite this knowledge, the father waited
until August 2000 when the child was 16 months old to legitimate the
child in the probate court. [FN3] Therefore, we must determine whether
there is sufficient evidence from August 2000, when the father was
legally declared by a court to be the father of the child, that he
voluntarily relinquished custody of his child.
As the trial court noted, the father "fully admits that he has waited
until now to assert any rights he may have to this child."
Specifically, the father waited from August 2000 until February 2003 to
request custody of his child. During that time, with the exception of a
six-month period when the child resided with the mother, the child
resided with the maternal grandparents. They reared the child while the
father enjoyed the convenience of visitation. During this time, the
evidence indicates that the father visited with his son sporadically,
that he did not assist in his care, and that he abdicated any and all
decisions with regard to the health and welfare of the child to the
mother and the maternal grandparents.
Moreover, in September 2000, when the mother gave the maternal
grandparents temporary guardianship of the child in the form of a
limited power of attorney to make any decisions related to the physical
custody, health, education, or maintenance of the child, the father did
not seek custody of the child or show any interest or willingness to
assist in the daily care of the child. The father admitted that from
August 2000 to December 2002 (during the second and third years of the
child's life), he wanted the child to live in the home of the maternal
grandparents. In October 2002 when the mother overdosed on heroin, the
maternal grandparents, concerned for the child's welfare, contacted the
father about removing shared custody of the child from the mother. The
father, who shared joint legal and physical custody of the child with
the mother, did not exercise his prima facie right to custody at that
time, but instead sought joint custody with the maternal grandparents
and allowed them to continue rearing the child. Indeed, when asked why
he had never spent 24 hours alone with his son, the father admitted
that he had had the opportunity to but chose not to exercise that
opportunity for bonding time with the child. The record reveals the
following occurred during cross-examination of the father by counsel
for the maternal grandparents:
*6 "[Maternal grandparents' counsel]: And, Mr. [C.], isn't that just a
pattern of yours not to take the initiative, but to let [the maternal
grandmother] do all of the things necessary for the care of your son,
doctor's appointments, preschool, you have done that all of his life,
haven't you?
"(No audible answer from witness.) "[Maternal grandparents' counsel]:
And you are still doing it, aren't you?
"[Father]: Yes."
The record is replete with similar examples that provide evidence
indicating that the father has forfeited his right to custody of the
child, relying upon the maternal grandparents to provide for the
child's housing, care, and well-being.
As the Court of Civil Appeals recently stated in K.C. v. D.C., 891
So.2d 346, 349 (Ala.Civ.App.2004), when confronted with a similar
situation in which it concluded that the father had voluntarily
relinquished his right to custody:
"The grandparents approached the father in 1998, alerted him to facts
indicating that the mother was possibly unfit, and told him that the
mother had requested that the grandparents rear the child. Under Ex
parte Terry, [494 So.2d 628 (Ala.1986),] the father had the superior
right to custody, had he chosen to act upon it. Instead, he chose to
allow the grandparents to take on the role of parents and to rear the
child. The father's actions and statements, as recalled by the
grandparents, belie an intent to fulfill his parental role after the
mother's choice to abdicate her parental responsibility to the
grandparents. Certainly, the father has acted with some degree of
responsibility by visiting with the child and by paying some expenses,
including day-care expenses and school tuition. However, voluntary
relinquishment is not the equivalent of abandonment, and a finding of
voluntarily relinquishment need not be supported by evidence that a
parent has neglected to visit with or provide for his child."
Based on the foregoing, the trial court did not err in finding that the
father had voluntarily relinquished custody of the child to the
maternal grandparents and thereby lost his prima facie right to
custody. [FN4]
For this reason, the trial court's judgment, awarding custody of the
child to the maternal grandparents, is due to be affirmed.
[7] The father also challenges the trial court's finding that he is an
unfit parent. Having voluntarily relinquished custody of his child, the
father has lost his prima facie right to custody of his child. If at
some point in the future the father again seeks custody of the child,
he will have to prove that he is a fit parent and he also will have to
meet the McLendon standard, that is, he will have to prove that a
change in custody would materially promote the child's best interest
and, additionally, that the benefits of modifying custody would more
than offset the inherently disruptive effect of uprooting the child by
such a change of custody. See Ex parte McLendon, 455 So.2d 863
(Ala.1984).
*7 [8] Why does it matter whether the father is declared unfit to have
custody at this time since the father has lost his prima facie right to
custody of the child by voluntary relinquishment? It matters because a
finding of fitness at this time will become the law of the case. Ex
parte S.T.S., 806 So.2d 336 (Ala.2001). He would be permitted
unjustifiably to wipe his parental slate clean. In the future he will
have to show only that he is a fit parent from the time of the most
recent custody hearing forward. Ex parte S.T.S., 806 So.2d at 341.
The father argues that the issue of his unfitness as a parent was not
pleaded. When one seeks custody of a minor child, fitness as a parent
or person fulfilling the parental role is inherently at issue. Indeed,
the father injected the issue of "fitness" into the proceedings, when
he averred in his motion for custody of the child that "he is a fit
parent in every respect and is fully capable of caring for the minor
child." Although no witness labeled the father an "unfit parent," there
was extensive testimony concerning his suitability to serve as the
child's sole custodian. Therefore, the issue of "fitness" was
undoubtably litigated.
The issue of parental fitness is not fitness to visit with the child
while he or she is in another's custody. The issue of fitness is
whether the parent is fit to have the care, custody, and control of,
that is, the total responsibility for, the child. See =A7 12-15-1(17),
Ala.Code 1975. Unfitness to have custody at a particular time is not
necessarily the equivalent of grounds for termination of parental
rights, however. A parent may, after being found unfit, become a fit
parent and at that time seek custody of the child.
[9][10] We now address whether the trial court's finding that the
father is an unfit parent is supported by clear and convincing evidence
in the record. [FN5] A review of the record indicates that each factor
noted by the trial court as a ground for finding the father is unfit is
supported by clear and convincing evidence and that the father admits
most, if not all, of those factors. The father, in actuality, does not
even argue that he is fit for the responsibility at this time.
Moreover, the father's voluntary relinquishment of custody is a primary
factor indicating unfitness. The record also reveals that the father
ceased paying child support when the child's maternal grandparents were
caring for the child. The record further establishes that at the time
of the hearing he had drafted a budget, but he had not considered in
the budget the expenses of caring for the child; that he refused "for
convenience sake" to assume responsibility, other than providing
insurance, for the medical needs of the child; and that he had not
asked the maternal grandparents whether the child was presently
enrolled in preschool. Indeed, the father admitted that in July 2003
the father chose to pick his child up on Saturday, instead of the
scheduled Friday night for the weekend visitation because he had a "big
date." The foregoing are only a few of the many examples establishing
that the father at this time is unfit to assume custody of the child.
Clear and convincing evidence established that at this time the father
is not ready to assume the care, custody, and control of, that is, the
total responsibility for, the child. Because the record supports by
clear and convincing evidence the trial court's finding that the father
is unfit to have custody of the child at this time, the trial court's
judgment, awarding custody of the child to the maternal grandparents is
also due to be affirmed on this basis.
*8 " 'Neither the Court of Civil Appeals nor this Court is allowed to
reweigh the evidence in this case. This case, like all disputed custody
cases, turns on the trial court's perception of the evidence. The trial
court is in the better position to evaluate the credibility of the
witnesses ... and the trial court is in the better position to consider
all of the evidence, as well as the many inferences that may be drawn
from that evidence, and to decide the issue of custody.' "
Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997).
Based on the foregoing, the judgment of the Court of Civil Appeals is
affirmed.
AFFIRMED.

NABERS, C.J., concurs.

STUART, SMITH, and BOLIN, JJ., concur specially.

WOODALL, J., concurs in the result.

SEE, LYONS, and HARWOOD, JJ., concur in part and dissent in part.

PARKER, J., dissents.


STUART, Justice (concurring specially).
I am the author of the main opinion, and I wholeheartedly join the
special writings of Justice Bolin and Justice Smith. I write specially
to express additional views.
Children are a gift from God. [FN6] They need and deserve the love and
support of both their mothers and their fathers. Parents have God-given
rights concerning their children, which are and should be protected by
state government. With every right we possess, however, comes
responsibility. Rights must be claimed and responsibilities assumed or
they may be forfeited.
Parental rights require prompt recognition and the discharge of the
corresponding responsibility. Young children cannot care for
themselves; their needs for protection and care are immediate and
continuous. Young children are unique and vulnerable small persons who
cannot wait until it is convenient for a parent, male or female, to
decide that he or she wants to be entrusted with their care.
Today there is no reason for uncertainty or delay in assuming parental
responsibility, as science provides prompt determination of the
biological parent of a child and the law offers immediate protection
for that parent's rights. Dramatic advances in DNA testing allow
putative fathers to determine biological paternity immediately after
the child's birth. [FN7] The Alabama State Legislature in the Alabama
Uniform Parentage Act, =A7 26-17-1 et seq., Ala.Code 1975, [FN8] and the
Putative Father Registry Act, =A7 26-10C-1 et seq., Ala.Code 1975, [FN9]
has provided methods for a father to assert his rights to and assume
prompt responsibility for a child before the child's birth. One
objective of these acts is to encourage fathers to step forward and act
as fathers. See title to Act No. 84-244, Ala. Acts 1984, which enacted
the Alabama Uniform Parentage Act; and title to Act No. 2002-417, Ala.
Acts 2002, which amended the Putative Father Registry Act. These acts
serve the interests of fathers, mothers, children, and society as a
whole.
In Ex parte McLendon, 455 So.2d 863 (Ala.1984), this Court stated:
"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."
*9 455 So.2d at 865. The reasoning behind this holding creating the
voluntary-forfeiture-of-custody exception was recently explained:
"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 [the Court of Civil Appeals] 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 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, 49 Ala.App. 658, 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))."
R=2EK. v. R.J., 843 So.2d 774, 777 (Ala.Civ.App.2002)(footnote omitted).
Parental rights are counterbalanced by the responsibilities parents
assume with those rights. See Lehr v. Robertson, 463 U.S. 248, 103
S=2ECt. 2985, 77 L.Ed.2d 614 (1983). The father in this case lost his
prima facie right to custody because of his failure to timely assume
his responsibilities as a father.

NABERS, C.J., and SMITH and BOLIN, JJ., concur.

SMITH, Justice (concurring specially).
I fully concur in the main opinion. I respectfully disagree, however,
with the dissent of Justice Parker and the dissenting portions of the
special writings of Justice See and Justice Lyons insofar as they
maintain that the trial court's finding of unfitness is not supported
by clear and convincing evidence. I further respectfully disagree with
Justice Parker's dissent, which also takes issue with the holding of
the main opinion that the father voluntarily relinquished custody of
the child. I join Justice Stuart's special concurrence and Justice
Bolin's special concurrence.
*10 Justice Lyons's dissent concludes that the trial court erred in
finding the father unfit, because, the dissent concludes, there is no
clear and convincing evidence of misconduct or neglect by the father
that would render him an unfit parent. Justice Lyons's dissent also
suggests that the trial court's finding of unfitness was "gratuitous"
in that the claim of "unfitness" was not specifically pleaded.
The main opinion recites the findings of the trial court. Justice
Lyons's dissent contends that the main opinion "emphasizes the totality
of various circumstances that pointed to the father's unfitness without
giving appropriate emphasis to more recent developments." --- So.2d at
----. I fully concur with the main opinion because the record in its
entirety, with particular emphasis on current facts, warrants a finding
that the father, because of his misconduct and neglect, is currently an
unfit and improper person to be entrusted with the care and upbringing
of the child. The stark facts in this case reveal that by failing to
assume legal responsibility for his child, especially when the mother
abdicated hers, the father failed to give his young son the parental
nurturing a child needs and is entitled to receive from his parents.
Justice Lyons's dissent states that "[a]t most, the evidence suggests
that the father is not fully ready to undertake the sole responsibility
of parenting." --- So.2d at ----. His dissent acknowledges that while
the father did petition for full custody, he "nevertheless freely and
candidly admitted at trial that the child is very happy with the
maternal grandparents and that an abrupt change in custody might be
traumatic for the child." --- So.2d at ----. Justice Lyons's dissent
asserts that the father should not be faulted for suggesting to the
court that a change of custody from the maternal grandparents to him be
gradual in nature because a gradual change would be in the child's best
interest.
Of course, the father must suggest that any transition of the child
into his home should be gradual. His current circumstances explain why
he is still not able to assume sole responsibility for his son. He is
30 years of age, and he still has no residence of his own. He currently
resides with his mother, although he has a history of moving in and out
of her house and has had a "rocky" relationship with her. He "plans" to
move out of his mother's house, but he has taken no specific steps to
do so. At trial, he testified that he had recently prepared a budget of
his living expenses, but he admitted that his budget included no
allocation for the child's expenses except what is included in his
health plan. Notably, until the trial of this case, the father had
never spent 24 hours alone with the child. The father argues that the
maternal grandparents limited his contact with his son; thus, he now
seeks sole custody. Yet the father admitted at trial that in recent
months he contacted the maternal grandparents to advise them that he
had a date and, therefore, that he would not pick up his son on Friday
as scheduled but would begin his visitation on Saturday instead. His
date was with a woman he had just met and whose last name he could not
recall at the custody hearing.
*11 Given his behavior and lifestyle choices, it is understandable that
the father is willing to allow his child, who is now four years old, to
continue residing with the maternal grandparents. He just does not want
this Court to hold that he voluntarily relinquished custody or that he
is unfit.
As is too often the case, some parents are quite comfortable letting
someone else raise their child. It is only when the person or persons
actually responsible for the child's life do what persons in those
circumstances typically do--make the day-to-day decisions necessary to
rearing a child--that these parents assert their parental rights. These
parents want control over important decisions, but they want none of
the attendant daily parental responsibilities.
Justice Parker speaks of the untenable legal Catch-22 in which the
father finds himself. The undisputed facts of this case--as admitted by
the father himself--are what they are. The father seeks sole legal
custody, yet his actual behavior demonstrates that he has priorities
other than the child. The father's legal situation, however, is of his
own making.
I find it regrettable that Justice Parker tacitly implies that the main
opinion and the special writings are misguided in succumbing to a
"statist view." --- So.2d at ----. Justice Parker's entire conclusion
on the relevant legal issue in this case is premised on his conclusion
that the trial court impermissibly shifted the burden of proof. I
respectfully disagree with that conclusion. As the main opinion notes,
the trial court's entire order demonstrates that no burden shifting
occurred, and I believe that the trial court's findings are sound,
given the facts of this case and the standard of review. Despite
Justice Parker's extensive writing on issues of family government,
parental rights, and state intrusion on those rights, the facts in this
case simply do not support his conclusion that the trial court or this
Court subverted the standard of settled caselaw.
As the main opinion correctly notes, the ore tenus rule applies in this
case. When evidence in a custody case has been presented ore tenus, the
trial court's findings of fact based on that evidence are presumed to
be correct. Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996). This
presumption arises because the trial court is able to observe the
demeanor of the witnesses and to evaluate their credibility. Moreover,
"the trial court is in the better position to consider all of the
evidence, as well as the many inferences that may be drawn from that
evidence." 676 So.2d at 1326. Thus, the trial court is in the best
position to make a custody determination. 676 So.2d at 1324. Neither
this Court nor the Court of Civil Appeals may reweigh the evidence or
sit in judgment of disputed evidence presented ore tenus to the trial
court in a custody hearing. 676 So.2d at 1324-26.
In Ex parte Terry, 494 So.2d 628 (Ala.1986), this Court noted that in a
custody dispute between a parent and a nonparent, the parent has a
prima facie right to custody:
*12 " 'The prima facie right of a natural parent to the custody of his
or her child, as against the right of custody in a nonparent, is
grounded in the common law concept that the primary parental right of
custody is in the best interest and welfare of the child as a matter of
law. So strong is this presumption, absent a showing of voluntary
forfeiture of that right, that it can be overcome only by a finding,
supported by competent evidence, 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.' "
494 So.2d at 632 (citation omitted; quoting Ex parte Mathews, 428 So.2d
58, 59 (Ala.1983)). Under the law expressed in Ex parte Terry and its
progeny, the trial court must determine, in a custody dispute between a
parent and a nonparent, whether the parent (1) has voluntarily
forfeited custody, and/or (2) is unfit. I do not believe that the trial
court errs if it determines, without the issue having been specifically
pleaded, that a parent has both voluntarily forfeited custody and is
unfit. In fact, we have held that in proceedings involving custody of
children this Court "will not be governed by legal niceties in
pleading." Evans v. Evans, 264 Ala. 2, 6, 84 So.2d 337, 340 (1955).
Given the gravity of a decision to award custody of a child to a
nonparent over a parent, the trial court acts with an abundance of
caution when it examines both factors instead of only one.
It might be tempting to avoid addressing the issue of fitness here
because the father conceded in his testimony that the child is
presently better off residing with the maternal grandparents. If the
trial court made only a finding of voluntary relinquishment, the child
could still be left to reside with the maternal grandparents. Voluntary
relinquishment and unfitness, however, are not mutually exclusive
findings; I find nothing in Ex parte Terry that would suggest that
evidence of a parent's voluntarily abandoning or relinquishing custody
of his child cannot be considered in also determining whether the
parent is unfit. Indeed, evidence that a parent lacks interest in or
fails to care for his or her child would be extremely relevant in
determining the parent's fitness.
A parent who is physically present but who fails adequately to
supervise, feed, clothe, or otherwise support a child is said to have
neglected his or her child. So too, a parent who by lifestyle choices
continues to be unavailable to assume parenting responsibilities
evidences not only voluntary relinquishment but also neglect by failing
to be physically and emotionally present to meet the daily demands of
parenting. I believe it is appropriate that this Court address the
issue of fitness in this case because the issue of the propriety of the
trial court's finding of unfitness is properly raised on appeal.
A reversal of the trial court's determination that the father is unfit
would become the "law of the case." The law-of-the-case doctrine holds
that "whatever is once established between the same parties in the same
case continues to be the law of that case, whether or not correct on
general principles, so long as the facts on which the decision was
predicated continue to be the facts of the case." Blumberg v. Touche
Ross & Co., 514 So.2d 922, 924 (Ala.1987). In Ex parte S.T.S., 806
So.2d 336, 341-42 (Ala.2001), this Court applied the law-of-the-case
doctrine to a custody determination and held that the Court of Civil
Appeals' previous determination of the facts in that case precluded the
trial court from revisiting those facts on remand.
*13 The father in this case is either "fit" or "unfit" to be entrusted
with the care and upbringing of the child. An unwarranted reversal of
the trial court's determination that the father was unfit would
foreclose the trial court from subsequently considering whether the
father was unfit--at least insofar as it relates to acts that occurred
before the reversal and remand--in a later custody proceeding. Thus,
the evidence of the father's past actions, including his failure to
assume daily parental responsibilities; his inability to manage his own
life or to hold steady employment; and the fact that until the trial of
this case he had never spent 24 hours alone with his own son, would
arguably be barred. Such evidence, unless remote in time, is extremely
relevant in a custody determination.
Justice Lyons's dissent states that the trial court's award to the
father of specific and liberal unsupervised visitation is an "anomalous
result" if the father is truly unfit. I find no inconsistency, however,
in the trial court's finding the father to be unfit and yet awarding
him liberal visitation. As the main opinion notes, the issue is whether
the father is fit to provide for the care, custody, and control of the
child, i.e., to take ultimate responsibility for the necessary
day-to-day decisions for the child's best interest, not whether he is
fit to exercise scheduled visitation. As the main opinion also notes, a
finding of unfitness is not tantamount to a termination of parental
rights. Said another way, a finding of unfitness is not the equivalent
of a finding of permanent parental incompetence.
There is clear and convincing evidence of neglect on the part of the
father, which renders him an unfit parent. His voluntary relinquishment
of his son's custody is, as already noted in the main opinion, only one
of many facts, past and present, that contributed to the trial court's
finding of unfitness.

NABERS, C.J., and STUART and BOLIN, JJ., concur.

BOLIN, Justice (concurring specially).
Despite the number of writings, this is not a difficult case. In
addition to all five judges on the Court of Civil Appeals, eight of
nine Justices on this Court are voting to affirm the judgment of the
trial court placing primary custody of the four-year-old child in the
hands of the maternal grandparents.
I fully concur with the main opinion that the record supports the trial
court's finding that the father had voluntarily relinquished custody of
the child to the maternal grandparents and that the record contained
clear and convincing evidence that the father was unfit. I also join
the special writings of Justice Stuart and Justice Smith. I write
specially to address portions of Justice Parker's dissent.
The dissent maintains in part that the evidence does not establish that
the father knew of his right to custody. I believe that the record
demonstrates that the father was well aware that he had legal rights to
this child. In June 1999, two months after the child was born, the
father requested a paternity test, which established his paternity. In
August 2000, the father filed a declaration of legitimation as to the
child in the probate court. In April 2002, he intervened in legal
proceedings between the mother and the maternal grandparents regarding
the custody of the child. In August 2002, the father entered into an
agreement before the court establishing with the mother joint legal and
physical custody of the child. In October 2002, the father and the
maternal grandparents filed a joint petition to modify custody. It
appears from the record that instead of the father's being ignorant of
his rights to his own child, he was more aware of his parental legal
rights than are most unwed fathers, and he made the conscious decision
to forsake his parenting responsibilities, waiting nearly four years to
finally request full legal custody.
*14 Much of the dissent, especially as it pertains to the groundwork
the Founders of our republic established for our government, is correct
and would be well-placed in an opinion that does not deal with the
custody of a four-year-old child. I agree with the characterization of
the view of our country's Founding Fathers that God, not the state or
any government established by man, is the source of all our rights. I
strongly contend, however, that this same God also imbued in each of us
a sense of responsibility and compassion that should make us recoil
from the concept of protecting parental rights to the detriment of a
child's safety, well-being, and welfare.
I further agree that parents have a God-given right and responsibility
to rear their children and that they should be allowed to do so
unfettered by state interference. But this can be true only when a
parent accepts that right and responsibility. In this matter, the
father not only did not accept his parental duty, he abdicated it.
The father in this case voluntarily let the infant child remain in the
care of the maternal grandparents after the mother had left the child.
Over the next three years, the father virtually abandoned the
child--seeing the child only a few times each year. The father,
measured by any standard of parental responsibility, financially
abandoned the child. The father has never even spent 24 hours alone
with the child and readily admits that a change in custody from the
maternal grandparents would traumatize the child. The father also
admits that he abandoned a former girlfriend once he found out she was
pregnant.
The maternal grandparents filled the void left by both parents'
abdication of their parental roles. It was the maternal grandparents
who loved, nurtured, fed, clothed, and took care of this child, while
the father, at times, placed going out on a date ahead of his precious
right to visit with his child. This child was bonding, day by day, with
the only people in this world taking care of him while the father was
growing up and finding himself.
The dissent quotes several definitions of "government" from Noah
Webster's American Dictionary of the English Language (Foundation for
American Christian Education 1995) (1828). I find most telling, and
most apropos to the facts in this proceeding, the illustration by
Webster provided for the fourth definition, concerning the sphere of
family government, as set out therein: " 'Let family government be like
that of our heavenly Father, mild, gentle, and affectionate.' " ---
So.2d at ----. In acknowledging that our Heavenly Father is a loving
and affectionate God, I must question where has been the love,
gentleness, and affection shown by this earthly father, the appellant
in this proceeding, to his child? It is, according to the record,
largely nonexistent.
The record reflects that the mother and the father never married. They
do not live, and have not lived, together. Since her overdose on
heroin, the mother does not seek custody. The father has been
irresponsible as a parent for the entire life of the child. Under these
circumstances, it was the maternal grandparents who offered the only
"family government" support system of which Webster's definition speaks
so highly, and which the child in this case so desperately needed.
*15 The very best government for a free society is a limited
government. But a "limited government" serves its most noble purpose
when called upon to protect those not able to protect themselves--most
notably, the children. We should never reach the point where we confuse
constitutional philosophy concerning limited government with a court's
custodial determination for a child whose parents have failed him. Let
us not forget that if the father in this case had appreciated and loved
this child since the child's birth, we would not now be entertaining
this proceeding.
The dissent goes on to state that "courts should interfere as little as
possible with parental decision-making, instead deferring to parental
authority whenever it has not been fundamentally compromised by
substantial neglect, wrongdoing, or criminal act." --- So.2d at ----
(emphasis added; footnote omitted). The only fundamental compromise
involved in this matter involves not "parental decision-making," but a
fundamental compromise concerning parental duty and responsibility.
Unfortunately, the results of such fundamental compromises that we hear
about today far too often result in harm to, or the loss of life of, a
child. This father voluntarily relinquished his parental rights, and he
has proven himself unfit to have custody.
It is all too easy to be heavy on rights and soft on responsibilities.
If we are to refer to the "inalienable rights" of the Preamble to the
Declaration of Independence, let us also refer to its conclusion: "And
for the support of this Declaration, with a firm reliance on the
protection of divine Providence, we mutually pledge to each other our
Lives, our Fortunes and our sacred Honor." The dissent is devoid of any
suggestion that sacrifice, moral or financial responsibility, honor, or
even love has any place in deciding whether a parent who has
voluntarily relinquished custody of a child is entitled to what the
dissent calls an "inalienable right" to primary custody.
With rights come responsibilities, male and female, husband and wife.
With parental rights, ordained by God, come parental responsibilities,
just as much ordained by God. In fact, we can say that the more sacred
the right, the more solemn the responsibility. The defaults of the
father to his divinely appointed parental responsibilities throughout
his child's life can only be described as egregious.
The Declaration of Independence affirmed a God-ordained natural order.
I believe in such a natural order. Nothing in God's order or the
Declaration of Independence, however, says that the irresponsible,
immature, derelict parent in this case, who has in fact abandoned and
ignored his child throughout the child's life, has the essential right
to remove the child from the care and custody of its maternal
grandparents, who have provided the child with the only love and
compassion or semblance of hearth and home the child has ever known.
The learned trial judge heard the evidence and observed the demeanor of
the witnesses. The trial judge was on the firing line and showed a
proper concern for the custodial needs of the child in this proceeding,
a child who was bereft of parental care, parental protection, and
parental nurturing. "The trial court is in the best position to make a
factual determination--it hears the evidence and observes the
witnesses." Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994). The trial
court's opinion is supported by the record; it is not plainly and
palpably in error; and the evidence of the father's fitness should not
be reweighed.
*16 " '[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, Payne v. Payne, 550 So.2d 440
(Ala.Civ.App.1989), and Vail v. Vail, 532 So.2d 639 (Ala.Civ.App.1988),
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. Gamble v. Gamble, 562 So.2d 1343
(Ala.Civ.App.1990); Flowers v. Flowers, 479 So.2d 1257
(Ala.Civ.App.1985).' "
Perkins, 646 So.2d at 47 (quoting Phillips v. Phillips, 622 So.2d 410,
412 (Ala.Civ.App.1993)).
While Justice Parker correctly notes that parents generally know what
is best for their children and act accordingly, we are not here dealing
with generalities. Generalities are easy. What is not easy is the trial
court's duty to deal with the horrible circumstances of the real life
upbringing of an innocent, unfortunate child who has been abandoned
because of the drug addiction and gross dereliction of his parents--a
regrettable and all-too-common occurrence in the courts of Alabama.
The problem in this case lies with the child's mother and father, not
the decision of the trial court. By awarding primary custody to the
maternal grandparents, the trial court has refused to sanction the
father's violation of his parental responsibilities in abandoning his
proper role as father of this child.
Reversing the trial court's judgment and awarding primary custody to
the father as the dissent urges would create an immediate and grave
risk of tearing the child from the only loving family he has ever known
and placing this tender-aged child in the hands of a parent who was
found unfit for that role by an expert trial judge who has seen the
parties, listened to the testimony, and gained a much deeper knowledge
of the facts and circumstances of this case than an appellate court can
ever have. It would quite simply be wrong.

NABERS, C.J., and STUART and SMITH, JJ., concur.


SEE, Justice (concurring in part and dissenting in part).
I concur that G.C., Jr. ("the father"), relinquished his right to the
custody of his son, J.G.C. ("the child"). From August 2000, when the
father legitimated the child, until February 2003, when the father
first sought sole physical custody of the child--with the exception of
a six-month period when the child resided with his mother--the child
lived with his maternal grandparents. In August 2002, the father, the
mother, and the maternal grandparents negotiated an agreement pursuant
to which the father shared joint physical custody with the mother and
the maternal grandparents were granted visitation rights. The trial
court entered an order incorporating that agreement. The father allowed
the child to continue to reside with the maternal grandparents. Even
when the father's joint custodian, the mother, overdosed on heroin in
October 2002, the father did not assert his right to physical custody
of the child; he continued to allow him to reside with the child's
maternal grandparents. Thus, the father voluntarily allowed the child
to come to know the home of his maternal grandparents as his home and
to come to know his maternal grandparents as the adults on whom he
depended. The evidence, which is more fully elaborated in the main
opinion, is sufficient to support the trial court's finding that the
father voluntarily relinquished his right to the physical custody of
the child.
*17 I dissent, however, from the main opinion insofar as it affirms the
holding of the trial court that the father is unfit. First, I disagree
with the main opinion's assertion that it was necessary for the trial
court to reach the issue of the father's fitness. The main opinion
asserts that the father injected the issue of "fitness" into the
proceedings when he averred in his motion for custody of the child that
" 'he is a fit parent in every respect and is fully capable of caring
for the minor child.' " --- So.2d at ----. However, the father did not
have the burden of proving his fitness in order to be awarded sole
custody of the child; he enjoyed the presumption of a natural parent's
right to custody. Ex parte Terry, 494 So.2d 628 (Ala.1986). The burden
was on the maternal grandparents to prove that the father was unfit or
that he had voluntarily relinquished custody of the child. The maternal
grandparents argued only voluntary relinquishment; they did not assert
that the father was an unfit parent.
The main opinion says that it was necessary for the trial court to
address the issue of the father's fitness, for the following reason:
"Why does it matter whether the father is declared unfit to have
custody at this time since the father has lost this prima facie right
to custody of the child by voluntary abandonment? It matters because a
finding of fitness at this time will become the law of the case. Ex
parte S.T.S., 806 So.2d 336 (Ala.2001). He would be permitted
unjustifiably to wipe his parental slate clean. In the future he will
have to show only that he is a fit parent from the time of the most
recent custody hearing forward."
However, I do not suggest that the father be declared a "fit parent." I
suggest only that he should not have been declared an unfit parent
because the maternal grandparents did not raise that issue. [FN10]
Therefore, if this Court were to reverse the trial court's holding of
unfitness, we would not need to be concerned that we had "wipe[d][the]
parental slate clean."
Moreover, the suggestion that, if the father is not declared unfit,
"[i]n the future he will have to show only that he is a fit parent from
the time of the most recent custody hearing forward," presents a
problem that does not in fact exist. At the time of the hypothesized
future petition for a change in custody, the father will have to meet
the McLendon standard--that a change in custody would materially
promote the child's best interest and that the benefits of modifying
custody would more than offset the inherently disruptive effect of
uprooting the child by a change of custody. See Ex parte McLendon, 455
So.2d 863 (Ala.1984). In addition to meeting that burden, however, he
will be required to prove that he "is fit," 455 So.2d at 866, that is,
he will have to prove his fitness at that time, not at some time in the
past. [FN11]
I dissent also from the main opinion's statement without citation to
authority that "the father's voluntary relinquishment of custody is a
primary factor indicating unfitness." --- So.2d at ----. In Ex parte
Terry, this Court established the standard for a trial court to apply
in a custody dispute between a parent and a nonparent. Ex parte Terry
does not support the proposition that voluntary relinquishment is a
factor in the determination of unfitness:
*18 " 'The prima facie right of a natural parent to the custody of his
or her child, as against the right of custody in a nonparent, is
grounded in the common law concept that the primary parental right of
custody is in the best interest and welfare of the child as a matter of
law. So strong is this presumption, absent a showing of voluntary
forfeiture of that right, that it can be overcome only by a finding,
supported by competent evidence, 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 at 632 (quoting Ex parte Matthews, 428 So.2d
58, 59 (Ala.1983)). According to Ex parte Terry, "absent a showing of
voluntary forfeiture," the parental presumption may be overcome only by
a sufficient showing of misconduct or neglect rendering the parent
unfit. Relinquishment and unfitness are alternative bases for depriving
a parent of custody.
Moreover, a finding that a parent is unfit must be based on clear and
convincing evidence. Ex parte Terry, 494 So.2d 628. It is far from
obvious to me that a parent's considered judgment that at some point in
time it is better for the child to be cared for by a grandparent
indicates that the parent is, clearly and convincingly, " '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.' " 494 So.2d at 632.
Finally, for the reasons stated in Justice Lyons's dissent, I do not
believe that the maternal grandparents have proven the father's
unfitness by clear and convincing evidence. See Ex parte Terry, 494
So.2d 628. [FN12]
I therefore concur in the main opinion insofar as it holds that the
father relinquished his right to the custody of his son; I dissent,
however, from the main opinion insofar as, by affirming the judgment of
the Court of Civil Appeals, it affirms the trial court's holding that
the father is unfit.

LYONS, Justice (concurring in part and dissenting in part).
I concur in the majority's decision to affirm the judgment of the Court
of Civil Appeals, which affirms the judgment of the trial court, based
on evidence that the father voluntarily relinquished custody of the
child to the maternal grandparents. This Court will affirm a judgment
that is supported by any valid legal ground. Ex parte CTB, Inc., 782
So.2d 188 (Ala.2000). However, I respectfully dissent from the decision
to affirm the trial court's ex mero motu order insofar as it deems the
father an unfit parent.
The record is replete with evidence suggesting a healthy and
cooperative relationship between the father and the maternal
grandparents before the trial. As early as August 2002, the mother and
the father shared joint legal custody of the child. After the mother
overdosed on drugs, the father and maternal grandparents agreed to seek
joint custody of the child, and the trial court entered a pendent lite
order to this effect. Before trial, the father sought full custody.
After hearing the evidence, not only did the trial court deny the
father full custody, without being requested to do so by the maternal
grandparents or the child's guardian ad litem it deemed the father
unfit.
*19 The trial court's order, upon which the main opinion relies,
emphasizes the totality of various circumstances that pointed to the
father's unfitness without giving appropriate emphasis to more recent
developments. Those circumstances include the father's past history of
drug and alcohol addiction, his poor work history, and his carelessness
regarding his finances. It further characterizes the father as
immature, irresponsible, and easily dominated by his mother.
Specifically, the order states that the father was not present when the
child was born; that he did not legitimize the child until the child
was approximately 16 months old; that he failed to exercise his
regularly scheduled visitation rights during a particular summer month
because he lacked vacation days at this job; that before September 2003
he never spent 24 hours alone with the child; that he lived with his
mother at the time of trial; and that he was easily dominated by his
mother.
I disagree with the main opinion that these characterizations by the
trial court, many of which, as previously noted, ignore more recent and
positive events, rise to a level of unfitness. The record is replete
with evidence demonstrating that the father has made great strides in
reforming his life and in establishing a loving relationship with the
child. The father sought professional rehabilitation for his addictions
in 1997; he has been sober since October 1998, before the child was
born; he continues to attend meetings of Narcotics Anonymous and
Alcoholics Anonymous; and he has maintained a steady job for the past
two years. Additionally, the father established contact with the child
shortly after the child's birth; he subsequently legitimized the child;
he intervened in and was part of the legal proceedings between the
mother and the maternal grandparents regarding the child; as early as
August 2002, he and the child's mother shared joint legal custody of
the child; he cooperated with the maternal grandparents in seeking to
modify the custody arrangement he held with the child's mother after
her drug overdose; before trial, he and the maternal grandparents
shared joint custody of the child; he has maintained constant contact
with the child; he pays for the child's health insurance and various
other expenses, notwithstanding the trial court's criticism of his
management of his finances; and he has attended and completed parenting
classes. Indeed, under the trial court's order, the father was awarded
very specific and liberal unsupervised visitation with the child,
certainly an anomalous result if he is so unfit.
At most, the evidence suggests that the father is not fully ready to
undertake the sole responsibility of parenting. While the father did
file a petition seeking full custody, he nevertheless freely and
candidly admitted at trial that the child is very happy with the
maternal grandparents and that an abrupt change in custody might be
traumatic for the child. The father, in essence, suggested to the court
that he favored a change more gradual in nature. Certainly the father
cannot be faulted for respecting the best interests of the child.
*20 In Ex parte Terry, 494 So.2d 628, 632 (Ala.1986), this Court stated
that in order for a nonparent to overcome a natural parent's right to
the custody of his child, there must be a finding of " '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' " (quoting Ex parte Mathews, 428 So.2d 58, 59
(Ala.1983)(emphasis omitted)).
In Horn v. Horn, 879 So.2d 1197 (Ala.Civ.App.2003), the trial court,
upon finding the mother unfit, awarded custody of her five children to
the maternal grandparents. The Court of Civil Appeals reversed the
trial court's judgment, stating:
"The evidence produced at the trial indicated that the mother was
struggling financially, that she had no driver's license and no
vehicle, that some of her children have special needs, and that the
children have some unspecified dental problems that have resulted in
their having some teeth removed....
"We do not find clear and convincing evidence of the mother's unfitness
in this record. At most, we find evidence that the grandparents,
because of their intact marriage, their stable and greater income, and
their experience as parents, are perhaps more fit than the mother ....
This mother is employed, she rents a home, and she has friends upon
whom she can rely for assistance. She sought treatment for depression
on her own initiative, and she stated at trial that she would seek
assistance again, through counseling or other methods, were she to
become depressed or overwhelmed by her situation. The trial court
commended the mother for the steps she had taken to improve her life.
We do so as well. However, in our opinion, the improvements the mother
has made serve to indicate her fitness not her unfitness."
879 So.2d at 1202-03 (emphasis added).
In H.K. v. G.S.F., 877 So.2d 611 (Ala.Civ.App.2003), the Court of Civil
Appeals held that the trial court had erred in awarding joint physical
and legal custody to the mother and the paternal grandmother absent a
specific finding of unfitness on the part of the mother:
"The record supports the trial court's findings that the mother had
lived in and had been evicted from several residences, had a poor work
history, had remained in an abusive relationship with her husband for
an extended period, and had only a 'marginal home.' However, despite
those problems, the record further reflects that the mother had
otherwise properly cared for the child; had maintained stable housing
for approximately one year before the hearing; had separated from her
husband in October 2000 and had subsequently filed for a divorce; and
had also obtained stable employment, working as a cashier and as a
housekeeper. The mother pays for day care for the minor child and for
another child of hers. She has also attended parenting classes since
approximately July 2002. The trial court, without having found the
mother to be unfit, awarded the grandmother joint physical and legal
custody of the child. The record does not reflect that a prior custody
judgment divested the mother of custody of the child or that the mother
relinquished custody of the child. Therefore, we must conclude that the
trial court erred in granting the paternal grandmother joint physical
and legal custody."
*21 877 So.2d at 612-13.
After comparing the facts in the above-stated cases to the facts in
this case, I find no clear and convincing evidence of misconduct or
neglect by the father that would render him an unfit parent. If this
parent is unfit on the grounds here cited, in disregard of the
undisputed evidence of rehabilitation from the past mistake of drug
abuse, then the authority of the courts to declare parents unfit has
been dramatically expanded, and parents across this state stand in
jeopardy of being declared unfit for matters such as financial
irresponsibility and dependence on a parent, a substantially attenuated
degree of fault inconsistent with the standard that has heretofore been
applied.
The main opinion poses the question "[w]hy does it matter whether the
father is declared unfit to have custody at this time since the father
has lost his prima facie right to custody of the child by voluntary
relinquishment?" --- So.2d at ----. It matters because the trial
court's gratuitous finding of unfitness, in the absence of clear and
convincing evidence, will become the law of this case and will have an
unwarranted detrimental effect on any future attempt by the father to
gain custody of the child. See Ex parte S.T.S., 806 So.2d 336
(Ala.2001). In other words, in a future modification proceeding, the
father will have the unjustifiable burden of removing from his parental
slate a previous determination of unfitness that was not supported by
clear and convincing evidence. See Ex parte McLendon, 455 So.2d 863
(Ala.1984). The trial court's gratuitous finding of the father's
unfitness, in a proceeding where no allegation in any pleading charged
him with unfitness, where no witnesses testified that he was unfit, and
where the guardian ad litem opined that there was no evidence to
indicate he was unfit, should not stand.

SEE and HARWOOD, JJ., concur.

PARKER, Justice (dissenting).
Six of the nine Justices of this Court have written seven opinions in
this case. [FN13] I find this remarkable, because neither the
applicable child-custody laws nor the relevant legal precedents appear
to be particularly unclear or inconsistent. This being so, we must look
elsewhere for an explanation. After considerable reflection, I have
concluded that the primary cause of the Court's varied and often
conflicting opinions in this case is disagreement over foundational
issues that underlie the more visible custody issues. Thus I believe it
is imperative to consider those foundational issues to properly resolve
the case.
Some of these underlying issues include: What are the distinct
jurisdictional authorities of the state vis-=E0-vis the family, and,
thus, to what extent may the state be involved in a custody dispute?
What standard of review should apply when the lower court disregards
higher court standards and precedents? What is this Court's proper
response to a standard that appears to result in injustice? And by whom
are the best interests of a child to be determined?
*22 I write separately to consider these fundamental issues. I also
write to show that under Alabama law the father did not voluntarily
relinquish his right to sole custody of his son because he waited four
months after his first opportunity to assert his right. And I join
Justice Lyons in that portion of his writing dissenting from the
finding that the father was unfit, which finding, I note, only a
minority of this Court has chosen explicitly to uphold.
I=2E
Courts must recognize that the state is but one of several spheres of
government, each with its distinct jurisdiction and limited authority
granted
by God.
Perhaps the first fundamental issue that should be considered in this
case is the meaning of "government," and the nature of its multiple
jurisdictions as recognized by our nation's Founders. This is because
our understanding of government in general will largely determine our
views of particular governments and their interactions, such as the
extent of permissible state government involvement in family government
matters, including child-custody disputes.
America's Founding Fathers understood the word "government" to possess
a broader meaning than we usually acknowledge today, as seen clearly in
Noah Webster's original American Dictionary of the English Language,
the definitive guide to English usage in the early American republic.
Webster's first definition of "government" is "[d]irection;
regulation," which he illustrates in terms of individual government:
"These precepts will serve for the government of our conduct." Webster
also illustrates his second definition, "[c]ontrol; restraint," in
terms of individual government: "Men are apt to neglect the government
of their temper and passions." Webster's third definition, "[t]he
exercise of authority; direction and restraint exercised over the
actions of men in communities, societies, or states," is the broadest
definition of government and applies to every sphere. Noah Webster, An
American Dictionary of the English Language (Foundation for American
Christian Education 1995) (1828).
Webster introduces a second government sphere, the family (or the
household), with his fourth definition of government, "[t]he exercise
of authority by a parent or householder," which he illustrates with the
following quote from Shepard Kollock: "Let family government be like
that of our heavenly Father, mild, gentle, and affectionate." It is
only with Webster's fifth definition of government, "[t]he system of
polity in a state," that he identifies the government sphere most
recognized today--state (or civil) government. Lastly, Webster also
recognizes the governing sphere of the church, which he defines in one
entry as those "united under one form of ecclesiastical government."
Id.
Webster's definitions demonstrate that our Founders thought in terms of
a plurality of governments--including individual government and the
covenantal governments of the family, the state, and the church--and
not of state government alone. Each of these governments possesses its
own exclusive jurisdiction of authority, constituting the original
"separation of powers." Thus the separation of powers among the spheres
of governments is of a higher order and greater significance than the
separation of powers within a particular sphere of government, as in
the state government's division into executive, legislative, and
judicial branches. Consequently, courts must recognize and uphold the
separation of powers among the various government spheres even more
diligently than they already recognize and uphold the separation of
powers within the state sphere of government. [FN14]
*23 Having acknowledged the historic meaning of government generally as
well as having recognized the existence of the four particular
government spheres, we should next consider how these governments
relate to each other. Perhaps their most fundamental connection is that
they all possess grants of specific and limited jurisdiction from the
ultimate source of all legitimate authority, God (see Romans 13:1-2
("there is no authority except from God, and those that exist have been
instituted by God")), who as the Supreme Judge of the World is the
final authority over all disputes among men as well as among all
governments of men. (See Declaration of Independence.)
Another way in which these governments relate is that, although each
sphere possesses a distinct and exclusive jurisdiction, the governments
are not independent of each other but are interdependent. One way in
which these governments are interdependent is through a hierarchy that
reflects the order of their creation. Thus, individual government
historically preexists family government. Moreover, because individuals
make up families and because individual self-government is necessary
for family government to exist and to function properly, individual
government supports family government while retaining its own exclusive
sphere of authority. Likewise, family government preexists and supports
state government, while retaining its own exclusive sphere of
authority. If parents do not train their children to respect authority
at home, for example, they are less likely to respect authority in
government outside the home. Similarly, church government is also
composed of individuals and families that preexist and retain their own
distinct governing authorities while recognizing and supporting the
separate authority of church government.
Besides this mutually supportive role, the governments also provide a
mutually corrective role. Thus, when individuals break covenant in one
sphere of government, authorities in other spheres can take corrective
action. If a parent exceeds the jurisdictional boundaries of family
government--for example, by sexually abusing a child--state government
may sanction the parent for child abuse in a temporal court of justice
and, if the parent is a member of a local church, the government of
that church may sanction the parent in a spiritual court. These
mutually corrective jurisdictions may be understood as "checks and
balances" among the governments, which doctrine, like that of the
"separation of powers," is of divine creation rather than human
invention. Our legal traditions have long recognized these distinct
government spheres, their interrelations, and their separate
jurisdictions, although not always using such terms. Thus, what we call
"individual rights" may also be understood as the right of individuals
to govern themselves. Likewise, what we call "parental rights" are the
rights of parents to govern their children, which from ancient times
were symbolized by the authority of the rod of corporal punishment.
(See, e.g., Proverbs 13:24 ("He who spares the rod hates his son, but
he who loves him is diligent to discipline him.").) Similarly, the
courts' recognition of "religious rights" includes deference to the
decisions of ecclesiastical authorities (see historical overview in
Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331 (Ala.2002)
(Moore, C.J., dissenting)). [FN15] This sphere of church government has
been symbolized by the keys of the kingdom. (See Matthew 16:19 ("I will
give you the keys of the kingdom of heaven, and whatever you bind on
earth shall be bound in heaven, and whatever you loose on earth shall
be loosed in heaven.").) State government also has its distinct sphere
of authority or governing rights and ancient symbol, the sword of
justice. (See Romans 13:4 ("[The ruler] is God's servant for your good.
But if you do wrong, be afraid, for he does not bear the sword in
vain....").) [FN16]
*24 To be sure, at different times in human history and in different
places today, each of these legitimate government spheres has
improperly exceeded its own lawful authority or even usurped the
authority of another government. For example, during the French
revolution, individual government exceeded its jurisdiction by
executing vigilante "justice" on aristocrats who declined to placate
the mob. [FN17] Likewise, whenever parents abuse or kill their
children, such as the infanticide sanctioned by pagan Rome or the
abortion sanctioned by shifting majorities of the United States Supreme
Court, family government exceeds its authority. Similarly, during
periods in European history, church government exceeded its proper
jurisdiction and intruded into areas reserved for state government.
In modern times, however, the governing jurisdiction that most often
exceeds its proper authority by usurpation is not the individual, the
family, or the church, but the state. Because we live in an age in
which such usurpation is so widespread that it has come to be commonly
tolerated, this Court, as an organ of the state and, simultaneously, a
minister of justice for all, must be especially vigilant to resist such
usurpation in whatever guise it presents itself, even where it appears
to favor the interests of a particular child.
II.
Because God, not the state, has granted parents the authority and
responsibility to govern their children, parents should be able to do
so
unfettered by state interference.
In view of the above, each time a court considers a child-custody
dispute it should begin by taking judicial notice of the fact that
parents possess the right and responsibility to govern and raise their
children; that God, not the state, has given parents these rights and
responsibilities, and, consequently, that courts should interfere as
little as possible with parental decision-making, instead deferring to
parental authority whenever it has not been fundamentally compromised
by substantial neglect, wrongdoing, or criminal act. [FN18]
Explicit judicial acknowledgment of the source of parental rights is
vital to preserve the vision and the reality of the state and society
our Forefathers fought and died for, because many leaders in our
society today reject the Founders' view. They regard as anathema all
calls to acknowledge God as the source of our rights and instead look
to the state for "conferred" rights. But this statist view cannot be
correct, for it converts our "rights" into mere privileges that endure
only as long as supporters of these privileges maintain sufficient
power in government. After all, if the state possesses the authority to
grant our "rights" it has the authority to take them away.
A recent ruling from the West Virginia Supreme Court of Appeals
illustrates the consequences of converting God-given rights into
state-granted privileges and thus underscores the importance of
judicial acknowledgment of, and deference to, the true source of our
rights. In Clifford K. v. Paul S., [Ms. 31855, March 8, 2005] --- W.Va.
----, --- S.E.2d ---- (2005), West Virginia's highest Court held that
custody of a child should be awarded to a lesbian "partner" of a
child's deceased mother rather than to the child's natural
grandparents, because the lesbian was the child's "psychological
parent" and the child's "second mother, by design" and "in actuality."
--- W.Va. at ----, --- S.E.2d at ----.
*25 Several erroneous presuppositions underlie the West Virginia
ruling. One is the presupposition that parental rights are mere
licenses from the state, which may act through its judicial agent to
alter or abolish them as it sees fit. Another erroneous presupposition
is that the parental roles of father and mother are interchangeable,
functional, and subjective rather than distinct, covenantal, and
objective. Under this view, children need "caregivers" rather than a
father and a mother; consequently, whoever gives the care is the "real
parent." Thus, one mother or two, one father or none, or a whole
village--it matters not as long as the child receives "care." These
views of parenthood and parental rights are fundamentally incompatible
with our Founders' belief that inalienable rights, including parental
rights, are given by God, who as the Creator determines their nature
and limits.
Concerned that a trend of increasing state usurpation of family
jurisdiction typified by the West Virginia ruling threatens Alabama
parents as well, I welcome Justice Bolin's "agree[ment]" in his special
concurrence "that parents have a God-given right and responsibility to
rear their children ... unfettered by state interference," --- So.2d at
----, and other Justices' joining this judicial acknowledgment of the
true source of parental authority and responsibility. Nevertheless, I
remain troubled that more of my colleagues have not joined this
explicit acknowledgment and that it is not matched in this case by
action to repudiate the lower court's extrajurisdictional order.
To be sure, I recognize that even the most duly deferential court
cannot completely avoid all state involvement in parental matters other
than in the exceptions I stated above: cases of criminal behavior,
substantial neglect, or other wrongdoing by parents. Yet where courts
cannot avoid other involvement-- such as custody disputes unwed natural
parents have brought to them--courts should rule as narrowly as
possible so as to intrude as little as possible. And where a custody
dispute is between a natural or biological parent and one who is not a
parent, courts should strongly favor the natural parent.
The fundamental principles outlined above have been recognized by
Alabama courts. Alabama appellate precedents do acknowledge that the
right to parent one's child is "a fundamental right," K.W. v. J.G., 856
So.2d 859, 874 (Ala.Civ.App.2003), "ordained" by "a higher authority."
Ex parte Sullivan, 407 So.2d 559, 563 (Ala.1981). Because our Creator
established the parent-child relationship, "a fallible judge should
disturb the relationship thus established only where circumstances
compel...." 407 So.2d at 563-64. Thus, parental rights may be
terminated only in the "most egregious of circumstances." Ex parte
Beasley, 564 So.2d 950, 952 (Ala.1990). Because the right to custody of
one's child is a parental right, Alabama law recognizes the natural
parent's "prima facie right to custody" over nonparents as "grounded in
the common law concept that this primary parental right ... is in the
best interest ... of the child as a matter of law." Ex parte Mathews,
428 So.2d 58, 59 (Ala.1983). Consequently, a natural parent's prima
facie right to custody may be defeated only when the natural parent is
found unfit by clear and convincing evidence or where he or she acts to
voluntarily relinquish this right to custody. Ex parte Terry, 494 So.2d
628, 630 (Ala.1986).
III.
To strip the father of custody of his child, the trial court improperly
alters
the standards this Court set out in Ex parte Terry.
*26 Perhaps because the applicable law and precedent so clearly require
courts to minimize their involvement in matters of family government
and parental authority, the trial court in the instant case does
formally acknowledge the principle of the father's prima facie right to
custody, as stated in Ex parte Terry. But the trial court undermines
this acknowledgment in practice by impermissibly altering the Ex parte
Terry standard to strip the father of his right.
On the issue of fitness, for example, rather than meet the burden of
proof of showing by clear and convincing evidence the father's lack of
fitness at the time of its ruling, the trial court's order reveals an
impermissible shift of the burden of proof to the father to prove that
he is fit to have custody: "[The father] has succeeded in giving this
court not one positive reason to place the child in his custody."
(Emphasis in original.) The lower court's treatment of the father as
unfit until proven fit is analogous to a court's changing the governing
standard in a criminal case to "guilty until proven innocent." [FN19]
Similarly, the trial court's treatment of "voluntary relinquishment of
custody" also involves an improper alteration of this Court's standard
to justify stripping the father of his right to custody. Although the
trial court's order initially cites the correct standard of voluntary
relinquishment of custody, it invents a different standard when it
finds "that both parents voluntarily abandoned their parental
responsibilities." (Emphasis added.)
To be sure, custody is a parental responsibility. But it is only one
among many, and a parent conceivably could voluntarily abandon a dozen
parental responsibilities, yet not voluntarily abandon the one parental
responsibility-- custody--that is specified by the Ex parte Terry
standard at issue before us. That the trial court failed to find the
requisite abandonment of custody is telling; that the court still
stripped the father of his parental rights may be treated as conclusive
proof of its judicial overreach.
I do not doubt that the trial court was sincerely motivated by what it
regarded as the "best interest of the child" when it ordered the
removal of the father's right to custody. The best intentions, however,
do not grant a lower court authority to alter the lawful judicial
standards of this state. The best intentions also do not permit a lower
court to employ those altered standards to strip the father of all
custody rights when no party to the case so requested. That is because,
absent such a request, the father has not received notice of the
potential loss of all of his custody rights, and he has not had the
opportunity to defend himself in court from that prospect.
Even the child's maternal grandparents, who opposed the father's
petition for sole custody (and thus had every incentive to support a
judicially imposed reduction or removal of the father's rights),
declined to petition the trial court to strip the father of all custody
rights. The maternal grandparents recognized that the child's interests
would be served best by having his father at least continue to share
custody. Because the grandparents recognized this despite their
personal conflicts of interest, the trial judge should have deferred to
their superior knowledge of the family circumstances, just as appellate
courts ordinarily accord trial courts a presumption of correctness
based on their relatively superior experience with a case.
IV.
By disregarding the proper legal standards, the lower court has
effectively
waived the presumption of correctness in this Court's review of its
decision.
*27 As Justice Stuart stresses in the main opinion and Justice Bolin
and Justice Smith reiterate in their special concurrences, in a
child-custody case in which evidence is presented ore tenus, this Court
ordinarily may not reweigh the evidence or substitute its judgment for
that of the trial court. See Ex parte Browsky, 676 So.2d 1322
(Ala.1996). Instead, as I noted above, the trial court is accorded a
"presumption of correctness on appeal," Ex parte Perkins, 646 So.2d 46,
47 (Ala.1994), due, in the words of Chief Justice Moore, to "the trial
court's unique position to directly observe the witnesses and to assess
their demeanor and credibility." Ex parte Fann, 810 So.2d 631, 633
(Ala.2001).
Although I agree with my colleagues in their summary of the law to this
extent, I believe their recitation to be incomplete because it omits
reference to the circumstance by which the lower court forfeits any
presumption of correctness. As Justice Stuart wrote earlier this year,
"The ore tenus rule does not ... cloak with a presumption of
correctness a trial judge's conclusions of law or the incorrect
application of law to the facts." Waltman v. Rowell, [Ms. 1031960, May
20, 2005] --- So.2d ----, ---- (Ala.2005) (citing Griggs v. Driftwood
Landing, Inc., 620 So.2d 582, 586 (Ala.1993)). See, also, Ex parte
Board of Zoning Adjustment of Mobile, 636 So.2d 415, 418 (Ala.1994)
("When a trial court improperly applies the law to the facts, the
presumption of correctness otherwise applicable to the trial court's
judgment has no effect."). Instead, this Court's review of conclusions
of the law and the application of the law to the facts is de novo.
Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996).
In the instant case, because the lower court impermissibly altered the
standards established by this Court to reach the extrajurisdictional
outcome it desired, it has arrived at incorrect conclusions of law and
has improperly applied the law to the facts. It has, thereby, waived
its right to a presumption of correctness upon this Court's review.
V=2E
Absent knowledge of a right to custody and intentional surrender of
that right,
there is no "voluntary relinquishment" of custody under Alabama law.
While mistakenly cloaking the trial court's order in the instant case
with a presumption of correctness, the main opinion upholds the trial
court's erroneous findings of voluntary relinquishment as sufficient
justification to strip the father of his right to custody. Yet,
reviewed de novo, the father's acts clearly do not constitute
"voluntary relinquishment of custody" under Alabama law.
In Alabama, an act of "voluntary relinquishment is ... essentially
synonymous with the concept of 'waiver,' which [is] defined as the
'voluntary and intentional surrender ... of a known right.' " Ex parte
D=2EJ., 645 So.2d 303, 306 (Ala.1994) (quoting Dominex, Inc. v. Key, 456
So.2d 1047, 1058 (Ala.1984)). "By definition ... a party 'cannot waive
a right of which he is unaware.' " Ex parte D.J., 645 So.2d at 306
(quoting Webb v. State, 539 So.2d 343, 353 (Ala.Crim.App.1987)). Thus,
in Alabama, for a parent to voluntarily relinquish custody of his or
her child, the parent: (1) must know he or she has a right to custody
and (2) must voluntarily and intentionally act to give up that right of
custody.
*28 The main opinion fails to establish either of these two
requirements, let alone both of them, to justify its claim that the
record "contains ample evidence" to support the trial court's finding
that the father voluntarily relinquished custody of his son to the
maternal grandparents.
VI.
The record contains ample evidence indicating that the unwed father did
not
know that he had a right to sole custody of his child.
The main opinion fails to show that the unwed father knew that he had
the right to sole custody of his son at the time the main opinion
claims he should have petitioned for it. In fact, the only evidence the
main opinion supplies on this issue is evidence of the father's lack of
knowledge of his prima facie right to sole custody.
Quoting from the trial court's ruling, the main opinion shows that the
father lacked awareness of his rights as late as the start of the
instant action: "[T]he father 'fully admits he has waited until now to
assert any rights he may have to this child.' " --- So.2d at ----
(emphasis added). The record elsewhere supplies further evidence
indicating that the father lacked awareness of his own custody rights.
When asked why he did not take steps to obtain sole custody of his son
at one point when the mother left the child for a time with the
maternal grandparents, the father replied, "I didn't know what my
rights were...." [FN20]
At first blush, it may seem peculiar that a father would doubt his
right to sole custody of his own infant child. But that is not so
peculiar in a world in which courts have granted women the legal
"right" to terminate the life of their pre-born children without even
notifying the fathers, let alone obtaining their consent. See Roe v.
Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112
S=2ECt. 2791, 120 L.Ed.2d 674 (1992).
These cases and their progeny are destructive of unity and mutuality in
marriage because they ultimately stand for the doctrine that mothers'
rights trump fathers' rights in marriage. And, if mothers' rights are
to be considered superior to fathers' rights even when the parents of
the child are married, how much more so when the parents are not wed?
In such a context, it is quite understandable for the unwed father in
the instant case to be unaware that he has any right to sole custody
over an illegitimate child.
Whether one considers the father's confessed ignorance of his parental
rights to be reasonable, however, is beside the point, for reasonable
ignorance is not the standard. Actual ignorance is the standard, and
the record shows that the unwed father was in fact un aware that he
possessed any right to sole custody of his son. Consequently, under the
controlling Ex parte D.J. standard, requiring "voluntary and
intentional surrender" of a known right, and contrary to the main
opinion, the father in this case could not have "waiv[ed] [the prima
facie] right [to sole custody] of which he was unaware." [FN21]
VII.
The record contains ample evidence indicating that the father did not
voluntarily and intentionally surrender his custody rights.
*29 The record also supplies ample evidence indicating that the father
did not act to "voluntarily and intentionally surrender" his right to
custody. Instead, he increasingly asserted his custody rights over time
so that, by the start of the proceedings in the instant case, he was
petitioning the court for sole custody.
The father's increased assertion of his rights over time occurred even
though the mother initially avoided involving the father in the child's
life. She did not at first inform him of her pregnancy, and she did not
tell him of the birth until after the delivery. Nonetheless, and
although the father lived and worked out of state at the time, he did
take the initiative to test for paternity and to petition the court to
officially recognize him as the father. The court did so and gave the
child his father's family name. [FN22]
The first time a question of custody arose in this case was in February
2002, when the child was two years old. Unbeknownst to the father, the
maternal grandparents petitioned the court for temporary custody after
the mother had refused to give them access to the child for a time. In
a pendente lite order issued in April 2002, the court denied the
maternal grandparents' petition for custody, instead granting custody
to the mother and giving the maternal grandparents only visitation
rights. The father learned of this legal proceeding only after he
received notice of the judge's order. He then intervened and, as a
result, initially was awarded regularly scheduled visitation with the
child. Unsatisfied with mere visitation rights, however, the father
entered into negotiations to obtain custody and, through mediation, he,
the mother, and the maternal grandparents came to an agreement in
August 2002 that both parents should be awarded joint legal and
physical custody. The trial court entered an order adopting that
agreement. Tragically, however, in October 2002 the mother overdosed on
heroin. The father and the maternal grandparents filed a petition with
the trial court for emergency ex parte relief, seeking temporary
removal of custody from the mother as a result of her inability to care
for the child. The mother did not contest the petition, and the trial
court granted it in November 2002, removing the mother's joint custody
rights and granting temporary joint custody to the maternal
grandparents, while not disturbing the father's preexisting joint
custody rights. Then, in February 2003--after it had become clear that
the mother would not soon be fit to regain joint custody and when the
maternal grandparents asserted a superior right to custody over the
father--the father took action to preserve his parental rights by
petitioning the trial court for sole custody, which petition initiated
the instant case.
Thus, the record shows a consistent pattern of behavior on the part of
the father of voluntary petitions to the court for increased
recognition of his paternal rights, including the right to custody
(initially joint and later sole), as he became aware of the extent of
his rights as a father of an illegitimate child. This pattern of
increased understanding and assertion of parental rights over time is
exactly the opposite of what would be required for a legitimate finding
of voluntary relinquishment.
*30 In fact, the closest the record comes to showing that the father
voluntarily relinquished his right to sole custody is delay in fully
asserting that right. Specifically, the father waited for four months,
from October 2002 until February 2003, to assert his full prima facie
rights by petitioning the trial court for sole custody. Yet that delay
is hardly unreasonable, given hopes that the mother would recover from
her drug overdose and that her joint custody rights would be restored.
[FN23]
Indeed, delaying legal action under the circumstances was a kindness to
the mother and to the child. It was kindness to the mother, that she
might not despair of complete loss of her child while recovering from
the drug overdose. It was also a kindness to the child, already
disturbed by a sudden loss of any interaction with his mother as a
result of the overdose, because it allowed the child to remain in the
comfortable familiarity of the maternal grandparents' home.
Under the circumstances, if the father had done what the main opinion
now says he should have done--that is, petitioned for sole custody the
first instant it was possible--the trial court likely would have
refused, understandably finding the advocacy of another such abrupt
shock to the child to display a lack of concern for the child's best
interests. Thus, the holding of the main opinion forces the father into
a Catch-22: he loses if he asserts his full custody rights as soon as
possible or he loses if he delays as would be better for the child.
The holding of the main opinion not only puts the father in an
impossible situation, but it also does so without any legal support and
without any cited precedent of this Court. [FN24] The essence of this
holding is that one who possesses joint custody of a child and waits
four months after the opportunity first presents itself to petition for
sole custody has "knowingly," "intentionally," and "voluntarily"
"surrendered" his right to any custody. This holding not only is
unsupported but also is flatly contradicted by the authority of Ex
parte D.J. Therefore, it is fundamentally unjust and should not stand.
VIII.
Avoiding the false dichotomy of parental rights versus a child's
safety, well-
being, and welfare.
Justice Bolin's special concurrence appears to imply that the diligent
protection of parental rights at some point comes at the detriment of a
child's safety, well-being, and welfare, as though the two were
mutually exclusive. I believe otherwise. In fact, I believe the best
interests of a child are served by strengthening the state's
acknowledgment of, and deference to, parental rights, because God has
specially and uniquely equipped parents to raise their children so that
any parent who possesses at least some love can care for his or her
child better than the state, which by its nature cannot love.
Consequently, the best interests of children are served by the state's
declining to interfere with family government merely because its agents
can, in individual cases, conceive of ways to improve the lot of a
particular child.
*31 I believe what may particularly trouble some of my colleagues in
this case is that this Court's current standard in Ex parte Terry, if
faithfully applied, leads to an outcome they regard as unjust. Faced
with upholding the standard and causing apparent injustice, or seeking
justice at the cost of the standard, they have chosen the latter.
Rather than directly acknowledge that our standard has been found
wanting, however, they have honored it in form while gutting it in fact
by following what I consider to be the lower court's subversion of the
standard. Although such an approach may appear to help in an individual
case, it will cause more hurt than help in the end, because the
subversion of the language of the law inevitably undermines the
authority of the law.
There is a better way. If an existing court standard is found to hinder
rather than promote justice as defined by a higher authority, we may,
and should, refine or, if needed, even replace, our standard. And one
way to do so in a custody case like this one is to distinguish between
those parents who have established their right to noninterference by
the courts by founding their own family governments though marriage and
those parents who have not. Recognizing such a distinction clarifies
and corrects our standards with respect to determinations of voluntary
relinquishment and fitness.
With respect to "voluntarily relinquishment," natural parents who have
founded family governments by marriage covenant should never be found
by courts to have relinquished their custody or other parental rights
apart from a definitive and unambiguous act such as a signed writing to
that effect, as when children are given up by natural parents for
adoption. Natural parents who have not founded their own family
governments by marriage covenant, however, have not established their
right of state noninterference and thus should be subject to something
akin to a "presumptive waiver" standard. Under such a standard, implied
by the main opinion and special concurrences in this case, a nonmarried
natural parent's extended delay in fully asserting his or her parental
rights may be treated as a waiver of those rights.
Similarly, with respect to court adjudication of parental fitness,
married parents, as founders of a family government, should be able to
raise their children unfettered by state government interference,
whether by court or agency action. As the Ex parte Terry "clear and
convincing" standard will sometimes too easily permit state
interference in the separate jurisdiction of family government, its
application at most should be limited to narrow, defined areas,
specifically: neglect to the point of actual abuse, tortious
wrongdoing, or criminal acts on the part of parents. State involvement
in these specific areas is permissible, because in these cases parents
have acted improperly outside their jurisdiction and thereby subjected
themselves to the state's sword of justice. Where an unwed natural
parent has declined the separate jurisdictional protection afforded by
marriage, by contrast, the courts should be free to apply the standard
of review to any factor affecting fitness, as in the case before us.
*32 I believe refining our standards to distinguish between married
parents and unwed parents in the manner specified above increases
justice for parents and children alike while simultaneously
acknowledging and honoring the separate governing jurisdiction of the
family established by our Creator. Moreover, by returning to first
principles, the refined standard also avoids the false dichotomy of
choosing between upholding family government by judicial
non-interference and protecting children by necessary and lawful court
involvement.
IX.
Conclusion.
I am very sympathetic to the hardships illegitimate children face in
Alabama today, and I am particularly sympathetic to the circumstances
of the child in the case before us. But the law recognizes that
parental authority is ordained by God as a governing sphere distinct
from that of the state and, consequently, that parents or guardians,
not state officials or courts, generally know what is best for, and act
in the best interest of, their children. Furthermore, my personal
feelings of sympathy for the child in this case do not relieve me of my
obligation to interpret and apply the law and lawful precedents as they
have come down to us, absent a higher, superseding authority or clear
error in the caselaw standards. And what has come down to us requires
both a parent's knowledge of a particular right to custody and an act
intentionally and voluntarily forfeiting that custody for a finding of
"voluntary relinquishment." Because neither knowledge of a right to
sole custody nor an intentional act is present in this case, the
appropriate conclusion under Alabama law is that the trial court
improperly invoked the standard to justify stripping the father of his
right to custody of his son.
Furthermore, although I recognize that sound reasons may exist to
justify the loss of an unwed father's custody rights if he waits an
extended period to assert them, that issue is not before this Court
under applicable statute, precedent, or procedure in this case. But
even if the issue were properly before this Court, we should not
determine the outcome by upholding the lower court's twisting of the
plain legal meaning of the term "voluntary relinquishment." Instead, we
should apply the existing standard as is in this case and articulate a
refined standard to apply in future cases. By giving parents, legal
counsel, and the lower courts clear notice of changed standards, we
promote in the law right ends as well as right means to those
ends--both of which are necessary for justice to be maintained for
adults and children alike.
Although the main opinion and the other special writings regrettably
have not given explicit notice of what I regard to be a clear shift in
this Court's standards, I believe this case reveals an emerging
consensus recognition that, in the words of Justice Bolin, parents
possess a fundamental "God-given right and responsibility to rear their
children ... unfettered by state interference," --- So.2d at ----, that
this right is secured by parents who have established family
governments by marriage covenant, and that unwed parents who fail to
take responsibility to promptly assert their parental rights may be
presumed to have waived them.

FN1. Unfortunately, because of the trial court's heavy docket, the
hearing was conducted over a period of time. Testimony was presented to
the trial court ore tenus on March 3, 2003, May 22-23, 2003, and
September 8, 2003.


FN2. As Justice Parker notes in his dissent, the maternal grandparents
sought joint custody, not full custody, of the child. They testified
that the father should be part of the child's life. However, the father
requested sole custody rather than joint custody with the maternal
grandparents, which changed the nature of the proceedings and
"solicited" the trial court's review of his custody rights.


FN3. The father admitted at the hearing that in his deposition he
stated that "it just was not a top priority to have [the child]
legitimized." The father also admitted that the paternal grandparents,
who did not learn about the child until the child was seven months old,
"brought up" the subject of legitimizing the child. The father admitted
that despite the fact that he was 27 years old and working full-time,
he did not have the money to pay for the legitimation so the paternal
grandfather paid the $200 filing fee. The father stated that he
subsequently repaid the paternal grandfather.


FN4. Justice Parker in his dissent maintains that the evidence does not
establish that the father knew of his right to custody and that he
voluntarily and intentionally relinquished custody. First, every man is
charged with knowledge of the law, see Atkins v. Parker, 472 U.S. 115,
130-31, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985)("All citizens are
presumptively charged with knowledge of the law.... The entire
structure of our democratic government rests on the premise that the
individual citizen is capable of informing himself about the particular
policies that affect his destiny."); therefore, the father's ignorance
of the law does not justify his not exercising his right to custody
once he had his son
legitimized in the probate court.

Moreover, the father's actions and admissions clearly establish that he
knew that he could have exercised his right to custody. The father "had
a gut feeling" when the mother informed him that she was pregnant that
the child was his child, and he was happy about the child. The father
visited the child within two weeks of the child's birth and at that
time discussed having a paternity test performed. Within two months of
the child's birth in June 1999, a paternity test was conducted that
conclusively established that he was the father. The father visited the
child in August 2000, during the child's first year and legitimated the
child when the child was 16 months old. The father admitted that he
knew in September 2000 that the mother had given the maternal
grandparents' decision-making authority regarding the child through a
power of attorney and that he did not object or request custody of the
child at that time. He admitted that in February 2002 he went with the
maternal and paternal grandparents to an attorney's office to discuss
the mother's conduct. The father admitted that he did not interject
into the discussion that he wanted custody of the child and that at
that time he wanted the child to stay with the maternal grandparents.
Indeed, even the father recognized that he was charged with a
responsibility to find out his rights to custody of the child because
when
he was asked why he did not take steps to gain custody of his child
when the child was not living with him or the mother, the father
responded, "I didn't know what my rights were and I didn't--I didn't
further investigate anything." (Emphasis added.) These admissions by
the father and his interaction with the legal system during the child's
first three years of life clearly establish that the father knew and
had an opportunity to investigate and establish his right to custody of
the child. This observation of the father's knowledge of custody and
yet his refusal to assert it is bolstered by the admission of the
paternal grandmother that she and the father realized the father could
have at any time asserted his right to custody. Clearly, the father and
the paternal grandmother realized he had rights to the child, but the
father decided not to investigate and determine how to exercise those
rights.

Justice Parker maintains that "the record shows a consistent pattern of
behavior on the part of the father of voluntary petitions to the court
for increased recognition of his paternal rights, including the right
to custody (initially joint and later sole), as he became aware of the
extent of his rights as a father of an illegitimate child." --- So.2d
at ----. While the record does exhibit a gradual increase in the
father's interest in the child, the record clearly establishes that the
father's interest is
limited to spending more time with his child, that is, receiving more
liberal visitation. None of the facts establish an increased role of
the father in the day-to-day decision-making and care for the welfare
of the child--that is, a desire for full custody of the child. For
example, the father admitted that instead of taking the child to the
doctor when he noticed, during a visitation that occurred between the
May and September hearing dates, that his child was ill he asked the
maternal grandmother to set up the appointment and take the child,
because "it was a convenience thing." Indeed, the record clearly
establishes that the only reason he petitioned the court for full
custody of his child was because he believed that his visitation with
the child had been unjustly limited by the maternal grandparents. The
father unequivocally replied at the hearing when asked if he thought
custody should be awarded in full to him then, "no." While the record
repeatedly establishes that the father does want to increase the amount
of visitation he has with his child, it also unequivocally establishes
that his petitions to the court are a product of his desire to have the
convenience of more liberal visitation, not the responsibility of full
custody.


FN5. Justice Parker in his dissent maintains that the trial court
impermissibly shifted the burden of proof to the father to prove that
he is fit to have custody. In support of his contention, he relies on
the following clause in the trial court's order, "[The father] has
succeeded in giving this court not one positive reason to place the
child in his custody." The trial court's statement in its entirety
reads, "He hasn't a clue where his money goes, his mother continues to
dominate most if not all of the aspects of his life, he cannot manage
this four-year-old child alone and has succeeded in giving this court
not one positive reason to place the child in his custody." (Emphasis
added.) The trial court's observation that "the father has succeeded in
giving this court not one positive reason to place the child in
custody" indicates the trial court's recognition that the father can
present evidence to rebut the evidence indicating unfitness. Such a
statement, in light of the detail in the trial court's order, does not
indicate an improper shifting of the burden of proof.


FN6. Psalms 127:3-5.


FN7. For example, swabs of tissue taken from the mouths of both parents
and the newborn infant can be tested allowing an early determination as
to biological parentage that was formerly unavailable.


FN8. Under the Uniform Parentage Act, a putative father may file an
action to establish his paternity before the birth of the child. See =A7
26-17-6, Ala.Code 1975. This act also provides protections for the
rights of unwed fathers. See =A7 26-17-3, Ala.Code 1975 ("The parent and
child relationship shall extend equally to every child and to every
parent, regardless of the marital status of the parents.").


FN9. The Putative Father Registry Act allows a putative father to file
notice of his intent to claim paternity, which may later be revoked,
before the birth of the child.


FN10. I do not agree with Justice Smith's statement that a reversal of
the trial court's determination that the father is unfit would by
virtue of the law-of-the-case doctrine foreclose the trial court from
considering the father's fitness in a later custody proceeding. ---
So.2d at ----. As the main opinion and Justice Smith recognize, the
law-of-the-case doctrine holds that "whatever is once established
between the same parties in the same case continues to be the law of
that case...." Blumberg v. Touche Ross & Co., 514 So.2d 922, 924
(Ala.1987). A reversal of the trial
court's finding of unfitness is not the same as a finding of fitness;
such a reversal would not establish, as the law of the case, that the
father is a fit parent.


FN11. As the main opinion acknowledges, a "parent may, after being
found unfit, become a fit parent and at that time seek custody of the
child." --- So.2d at ----.


FN12. Ex parte Berryhill, 410 So.2d 416, 417 (Ala.1982), upon which Ex
parte Terry rests, requires clear and convincing evidence of the
unfitness of a parent for the parental presumption to be overcome. See
also Chandler v. Whatley, 238 Ala. 206, 209, 189 So. 751, 754 (1939).
In Ex parte Terry, we expressly stated that "[t]he standard to be
applied in this case is that applied by this Court in Ex parte
Berryhill ...." 494 So.2d at 632.


FN13. Of the more than 7,100 released decisions included in the Court's
internal database covering primarily the past three years, this is the
first case in which Justices of the Court have issued seven separate
opinions.


FN14. Our courts already give great deference to the separation of
powers within the state sphere of government. See, e.g.,
Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, [Ms.
1031522, May 3, 2005] --- So.2d ----, ---- (Ala.2005) (Parker, J.,
concurring specially and emphasizing the right and responsibility of
each of the branches of state government to interpret the Constitution
for itself). Yet the Founders considered division of government power
to be so vital for the preservation of liberty and justice that they
separated state government power not only horizontally, among the
legislative, executive, and judicial branches, but also vertically,
between the states and the federal government.

In fact, the government of the United States was formed in a deliberate
separation of powers by the states. The states delegated to the federal
government powers that were particularly limited by their express
enumeration as well as generally limited by the Tenth Amendment to the
United States Constitution: "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people."

As our constitutional republic aligns the rights of the states with the
rights of the people, it is unsurprising that as many of the rights of
the states have been eroded or lost altogether so, too, have many of
the people's rights been eroded or lost altogether. Thus, those who
would preserve and recover individual rights must be equally zealous to
preserve and recover states' rights and the rights of the other
government spheres-- the family and the church.


FN15. Federal tax laws also reflect the state's recognition that the
church is a distinct and independent sphere of government, accountable
for its affairs to God rather than to the state. Thus, by statute
churches are automatically "nontaxable." They are not required to
incorporate, to seek official recognition by the Internal Revenue
Service ("the IRS") to avoid paying federal taxes, or to file annually.
(See 26 U.S.C. =A7 6033(a)(2)(A) and 26 U .S.C. =A7 508(c).) This is in
contrast to every other kind of nonprofit organization, which must
incorporate, must obtain IRS approval under a specific provision of the
Internal Revenue Code (e.g., 26 U.S.C. =A7 501(c)(3)) before qualifying
as "tax-exempt," and must file annually to preserve that state-granted
exemption.


FN16. In the original Greek language, machairan, the word translated
here as "sword," referred specifically to the double-edged blade used
for capital punishment. It represents the ultimate expression of the
authority of the state, the proper jurisdiction of which is the
execution of justice.


FN17. See Edmund Burke, Reflections on the Revolution in France
(1790)(contrasting the lawful means Americans used to achieve
independence from Britain with the unlawful means the French
revolutionaries used to overthrow their government).


FN18. In the Declaration of Independence, our Founders declared that
fundamental human rights are "endowed by our Creator" and thus
"unalienable." Article 1, =A7 1, Alabama Constitution 1901, similarly
recognizes that our "inalienable" rights are from God.


FN19. The main opinion contends that "in light of the detail in the
trial court's order," this statement by the trial judge "does not
indicate an improper shifting of the burden of proof" because it merely
"indicates the trial court's recognition that the father can present
evidence to rebut the evidence indicating unfitness." --- So.2d at ----
n=2E 5. This interpretation is not persuasive, however, because the trial
judge did not
give the father notice that his fitness for any custody at all was on
trial.

As far as the father knew, the only issue at trial was his fitness for
sole custody, because that is what he had petitioned the court for and
because no other party in the case had requested that he lose the joint
custody he then possessed. It was not until the trial judge's order
that the father could have known of his prospective loss of all custody
rights, at which time it was too late for him to "present evidence to
rebut the evidence indicating unfitness [for any custody]."


FN20. The main opinion argues that the "admissions by the father [that
he did not know what his rights were and did not investigate to find
out] and his interaction with the legal system during the child's first
three years of life clearly establish that the father knew and had an
opportunity to investigate and establish his right to custody of the
child." --- So.2d at ---- n. 4. I agree that the record shows the
father knew he had an opportunity to investigate his paternal rights.
But this level of knowledge falls short of the governing Ex parte D.J.
standard in two ways.

First, knowledge of an opportunity to investigate possible rights is
not
the same as knowledge of a right. Second, knowledge of the existence of
paternal rights generally, or even knowledge of a right to joint
custody, is not the same as knowledge of a right to sole custody, which
is at issue in this case because the father already possessed, and had
not relinquished, joint custody at the start of the proceedings in the
instant case. In this case, although the record shows a father with
some knowledge of his rights, it does not show, and the main opinion
does not establish, that the father knew he had a prima facie right to
sole custody following the mother's drug overdose.


FN21. The main opinion seeks to sidestep the requirement of Ex parte
D=2EJ., 645 So.2d at 306, that the father must be aware of his right
before he can possibly relinquish it by stating that as a citizen the
father "is charged with knowledge of the law." --- So.2d at ---- n. 4.
In support of this statement, the main opinion cites Atkins v. Parker,
472 U.S. 115, 130-31, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985), for the
proposition that our form of government "rests on the premise that the
individual citizen is capable of informing himself about the particular
policies affecting his destiny."

Atkins is inapplicable to the instant case, however, for at least two
reasons. First, the plaintiffs in Atkins faced a reduction in
state-granted benefits rather than a loss of God-given rights. Second,
the plaintiffs in Atkins received actual notice of the planned benefits
reduction and of the opportunity of a hearing to contest it, whereas
the father in this case did not receive advance notice of the
prospective loss of all his custody rights, because no party had
requested it. Consequently, the father had no opportunity to contest
such loss before the judge's order depriving him of his rights.


FN22. The main opinion considers it significant that the father did not
consider it "a top priority" to petition the court to formally
legitimate the child immediately after the paternity test he had
requested confirmed that he was the father and also significant that
the father "admitted" he did not even consider legitimation until his
parents brought up the subject. I consider it more natural for the
typical nonlawyer not to know that a court-sanctioned legitimation
procedure has any special significance, because paternity in this case
had already been established by science and because the common,
historic understanding of legitimation is that it first requires
marriage.


FN23. The main opinion cites Ex parte D.J. for the proposition that the
starting point for evaluating possible voluntary relinquishment of
custody should be August 2000, when the probate court legally
recognized the father's paternity. However, Ex parte D.J. does not
stand for this proposition; rather, it stands for the proposition that
an unwed father who delays three years until the death of the child's
mother to initiate legitimation and custody proceedings does not
voluntarily forfeit his prima facie right to custody over the maternal
grandmother with whom the mother and child had lived if he initiates
those proceedings soon after the mother's death.

Under Ex parte D.J., the time for a father to assert his presumptive
right to custody should start running, for possible
voluntary-relinquishment purposes, only after the mother has lost her
custody because of the " 'strong presumption in Alabama' " that " 'the
mother of a child born out of wedlock has a superior right of custody
over all other persons,' " including the unwed father. 645 So.2d at 307
(quoting Rainer v. Feldman, 568 So.2d 1226, 1227 (Ala.1990)). According
to the D.J. Court, the father's "promptness in initiating legitimation
proceedings and in seeking custody after [the mother's] death
conclusively rebuts any contention that he relinquished custody
rights...." 645 So.2d
at 307.

The promptness to which the D.J. Court refers was the start of legal
action within three months of the mother's death. If three months was
sufficiently prompt in a case in which it was clear the mother could
never regain custody because she was dead, then four months, as in the
case before us, should be considered sufficiently prompt where the
mother yet lives.


FN24. The closest the main opinion comes to supporting authority is its
appeal to a nonbinding, lower-court case, K.C. v. D.C., 891 So.2d 346,
349 (Ala.Civ.App.2004), which found a father to have voluntarily
relinquished custody in what the main opinion calls a "similar
situation." --- So.2d at ----. However, the circumstances the main
opinion calls "similar" include a delay of four years rather than four
months in the father's assertion of his prima facie right to custody
over the maternal grandparents following the mother's loss of her
custody rights. During those years, moreover, the father in K.C. did
not possess even joint custody, unlike the father here. I consider
these differences to be material even if, arguendo, one considers a
lengthy delay in assertion of custody rights to be equivalent to
voluntary relinquishment, which I do
not.

Ala.,2005.
Ex parte G.C., Jr.
2005 WL 1793345 (Ala.)
END OF DOCUMENT
(C) 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

 




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