Rey v. Rey
Rey v. Rey
Opinion of the Court
This is a child custody case.
Elizabeth and William Rey were divorced in April 1985. The decree of divorce adopted an agreement between the parties giving custody of their minor child, Robert, to the mother. The father received extensive visitation rights in the agreement which were also incorporated in the decree. In November 1985, the father filed a petition for change in custody together with a motion for a finding of contempt. The motion alleged that the mother had violated the visitation agreement contained in the divorce decree. The court heard the petition and the motion in December 1985 and entered an order granting temporary custody to the father. In May 1986 a hearing was held to determine permanent custody of the child. After evidence was given ore tenus, the court entered an order changing permanent custody of the minor child to the father. The mother appeals the trial court’s decision.
The standard which must be met in any child custody modification case is a stringent one. The parent seeking to change custody must meet the heavy burden of showing that the change of custody would materially promote the child’s best interests and welfare. Ex parte McLendon, 455 So.2d 863 (Ala. 1984).
Our review of cases in which evidence was given ore tenus is limited. We review the judgment of the trial court with a presumption of correctness and will not reverse on appeal except for abuse of discretion, or where the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Simmons v. Simmons, 479 So.2d 1251 (Ala.Civ.App. 1985). Each case of child custody must be determined upon its own facts.
The evidence presented in this case reveals that while the mother and son were
We have examined the evidence and find that both parents are capable of caring for the child, and that both would provide him with a loving, nurturing environment. However, the father failed to show by material evidence, as required by McLendon, that removing custody from the mother would materially promote the welfare and best interest of the child. Thus, we find the judgment of the trial court unsupported by the evidence and an abuse of discretion. That judgment is set aside and custody directed to be returned to the mother.
REVERSED AND REMANDED.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.