H.K. v. G.S.F. M.A.F.
H.K. v. G.S.F. M.A.F.
Opinion of the Court
This is a child-custody-modification case.
H.K. (“the mother”) and G.S.F. met in November 1999. The mother became pregnant shortly thereafter. She subsequently met another man and married him in March 2000. The child was born prematurely on September 6, 2000. G.S.F. elected to take a paternity test, which indicated that he was the biological father of
On appeal, the mother argues, among other things, that the trial court improperly awarded joint legal and physical custody to the paternal grandmother, without first determining that the mother was unfit. We agree.
“[I]n order to award custody of the child to the paternal grandmother, a nonparent, the trial court was required to apply the standard set forth in Ex parte Terry, 494 So.2d 628 (Ala. 1986). In Ex parte Terry, our supreme court held that in a custody dispute between a parent and a nonparent, a trial court may not award custody to a nonparent absent a finding, supported by clear and convincing evidence, that the parent is unfit; the exceptions to the rule that a parent has a prima facie right to custody of his or her child arise when a prior custody judgment transfers custody from the parent or where the parent voluntarily forfeits custody of the child.”
A.L. v. S.J., 827 So.2d 828, 833-34 (Ala.Civ.App. 2002).
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
Accordingly, we reverse the judgment and remand the case for further proceedings consistent with this opinion. Based on our reversal, we pretermit discussion of the other argument raised by the mother.
REVERSED AND REMANDED.
. The paternal grandmother did not file a brief with this court.
Reference
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