Cp v. Mk

618 So. 2d 126 (1992)

C.P. v. M.K. and R.M.K.

2910423.

Court of Civil Appeals of Alabama.

November 25, 1992.

Rehearing Denied January 8, 1993.

Certiorari Denied April 9, 1993.

*127 F. Patrick Loftin of Loftin, Herndon & Loftin, Phenix City, for appellant.

Michael J. Bellamy, Phenix City, for appellees.

Alabama Supreme Court 1920587.

ROBERTSON, Presiding Judge.

This case involves a custody dispute between nonparents and a parent.

M.K. and his wife, R.M.K. (petitioners), filed a petition in the Juvenile Court of Russell County, requesting temporary custody of O.P. (minor child), the infant son of C.P. (mother).

Following an ore tenus proceeding, the trial court entered a judgment which found the minor child to be a dependent child pursuant to § 12-15-1(10), Code 1975, and vested temporary custody of the minor child in the petitioners. However, the trial court did not find the mother to be an unfit parent. The mother appeals.

Our supreme court has held:

"`The prima facia 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 ... 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 628, 632 (Ala. 1986) (quoting Ex parte Mathews, 428 So. 2d 58, 59 (Ala.1983)) (emphasis in Terry.)

The judgment is reversed and the case is remanded for the trial court to determine if the mother is an unfit and improper person to be entrusted with the care and upbringing of the minor child.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THIGPEN and RUSSELL, JJ., concur.