T.I. v. R.C.L.

Citations: 627 So. 2d 916; 1992 Ala. Civ. App. LEXIS 363; 1992 WL 171544Docket: 2910178

Court: Court of Civil Appeals of Alabama; July 24, 1992; Alabama; State Appellate Court

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On November 6, 1989, R.N.C.'s paternal grandmother filed for temporary custody, which was granted by the trial court the same day, based on the putative father's affidavit supporting the grandmother's petition. On February 28, 1991, the mother challenged this custody, claiming it was taken without her consent, asserting her fitness as a custodian, and stating it was in the child's best interest to return to her. The trial court ordered a home study by the Department of Human Resources (DHR). Following an ore tenus hearing on October 24, 1991, the court deemed both parents unfit and continued custody with the grandmother. The mother appealed, and the court reversed the lower court's decision.

The grandmother had custody since R.N.C. was seven months old, after the mother, undergoing treatment at Brookwood Hospital, requested the grandmother's assistance. The mother subsequently became absent for about a week, during which time the grandmother obtained temporary custody. Upon her return, the mother had not been notified of the custody order, and the child was returned to her and the putative father. Later, due to domestic violence from the putative father, the mother left and complied with DHR’s demand to surrender the child, facing threats of arrest.

Currently living in New York with her fiancé and her infant son, the mother asserts another man is R.N.C.'s father and describes the putative father as an abusive alcoholic. She expressed a strong desire to regain custody, citing her love for the child, her stable home life, and the child's affection for her during visitation. The mother argues that the grandmother is too old to maintain custody and emphasizes her commitment to being a responsible parent.

The putative father acknowledged conflicts with the mother and admitted to her claims of physical altercations. He stated he cares for the child when not working and visits her at the grandmother's home. A friend of the mother testified to her exemplary parenting and the positive role of the mother's fiancé as a father. The grandmother expressed concerns about stability should the mother gain custody, while a former daughter-in-law praised the grandmother's energetic and loving home. A social worker from DHR recommended that the mother visit the child before any custody changes, noting the mother's stable living situation but raising concerns about a comment from the fiancé regarding acceptance of the mother's child. A probation officer's home study confirmed the mother's and fiancé's suitable living conditions and their willingness to care for the child, though it questioned the wisdom of leaving the child with elderly grandparents. The officer supported the mother's right to custody, provided no undisclosed issues existed. The trial court found both the mother and putative father unfit, citing the mother's unstable living history. The mother argued that the grandmother failed to prove her unfitness for custody, emphasizing her presumptive right to custody over a third party unless clear evidence of unfitness is presented. The mother contended she was not notified of the grandmother's temporary custody petition, denying her the chance to contest it.

A custodial parent cannot lose custody without proper notice and an opportunity to be heard, as established in Webb v. Webb. In this case, the mother did not receive such notice when the initial custody order was made, thus the burden remained on the grandmother to prove the mother's unfitness. The trial court found the mother unfit based on her frequent relocations and perceived inability to provide stability. However, evidence showed the mother had been stable in New York for over a year and was an excellent mother. Given the presumption that the mother has superior rights to custody, the court determined that the trial court erred in granting custody to the grandmother. The judgment was reversed, and custody was ordered to be granted to the mother.