B.F. v. C.D. and A.D.

Rel: August 22, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2025
_________________________

CL-2025-0032
_________________________

B.F.

v.

C.D. and A.D.

Appeal from Coffee Juvenile Court
(JU-21-122.02)

PER CURIAM.

B.F. ("the father") appeals from a judgment of the Coffee Juvenile

Court ("the juvenile court") denying his petition insofar as it sought

custody of S.G.R. ("the child"). We reverse the juvenile court's judgment

and remand the case.
CL-2025-0032

Background

The juvenile court entered its judgment on January 5, 2025,

following a trial on December 3, 2024. Its judgment summarized the

procedural history of the litigation involving the child, made findings of

fact, and stated the juvenile court's conclusion of law. In pertinent part,

the judgment stated:

"The court taking judicial notice of its previous order in
19-JU-2021-122.01 determined that the child was adjudged to
be dependent by order of the court dated October 4, 2021, and
that physical and legal custody of the … child was vested with
the respondent [C.D.] (and her husband [A.D.]) by that same
order. The order of October 4, 2021, set forth that the father
of the child was unknown.

"Testimony and evidence were presented ore tenus
regarding the [father's petition for custody of the child, which
the juvenile court treated as a petition to modify the child's
custody] and the request to change the current custody order
and upon consideration of the testimony and evidence
presented the court determined that any relief requested by
the [father] with respect to the request to change the current
custody of the minor child was due to be denied. The [father]
failed to meet the custody-modification standard set forth in
Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), as the court
determined that no material change in circumstances has
occurred since the last custody order and that there was
insufficient evidence to support a conclusion that a change in
custody would materially promote the best interest and
welfare of the child so that the positive good brought about by
the modification would more than offset the inherently
disruptive effect of the change in custody.

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"The child was born [i]n April … 2021, and in June 2021
as part of a safety plan initiated by the [Coffee County]
Department of Human Resources, the child was placed in the
home of [C.D.]. At the time of the child's birth there was no
legal or presumed father; however, evidence at this hearing
was that [the father] knew that the [mother] was pregnant,
that they had been engaged in a sexual relationship, [that] he
was sent pictures of the child after birth, [that he] met and
saw the baby when he was a couple of days old, and [that he]
bought formula for the baby after he was born. In addition,
the child's mother sent pictures and messages to [the father's]
mother [C.F.] of the baby after he was born, commenting that
'the baby looks like [the father].' The court finds this
significant in that [C.F.] has worked for 25+ years with
Embrace Kids, which is in some regard affiliated with the
[Coffee County] Department of Human Resources in working
... to reunify children with families and provide services to
families in need. Less than six months after the child's birth
a dependency petition was filed by the [Coffee County]
Department of Human Resources and at the shelter[-]care
hearing on October 4, 2021, the child was adjudged to be
dependent, and custody vested with [C.D. and A.D.] [C.D.] is
a lifelong friend to the child's mother and also has custody of
two of the mother's daughters who are half-siblings to this
child. The half-siblings have been in the care and custody of
[C.D.] and her husband since 2019. The child has remained in
the exclusive care of [C.D.] since the adjudication of
dependency and disposition and all of the child's needs are
being met by [C.D. and A.D.]

"This most instant petition was filed on behalf of [the
father] on February 15, 2024, nearly three years after the
birth of the child. On June 4, 2024, the issue of paternity was
addressed by the court and as result of DNA genetic testing,
and with no objection from the parties, [the father] was
adjudged to be the father of the child. Despite the arguments
and assertions of counsel prior to the final hearing the court
determined that the appropriate standard to be applied in this

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matter was the McLendon standard. Counsel for the [father]
argues that the appropriate standard would be the Terry
standard (Ex Parte Terry, 494 So. 2d 628 (Ala. 1986)), relying
on R.O.M. v. B.B., 854 So. 2d 98 (Ala. Civ. App. 2003). This
court in determining that the McLendon standard was
appropriate relied first on the custody order in 19-JU-2021-
122.01 which determined that the child was dependent and
that physical and legal custody of the … child was vested with
the respondent [C.D.] (and her husband [A.D.]). In Ex parte
McLendon the Alabama Supreme Court followed the case of
Ex parte Mathews, 428 So. 2d 58 (Ala. 1983), in determining
that '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 or a prior decree
removing custody from the natural parent and awarding it to
a non-parent.' In this instant matter there is a clear prior
[order], the order in JU-2021-122.01 dated October 4, 2021.
Although at the time of that order the father of the child was
unknown and [the father] was not noticed of that proceeding,
this court is satisfied that the child's father … had more than
enough notice, information, and belief that he was the
biological father of the child and failed to avail himself of the
rights of a father and that through his own actions voluntarily
forfeited any right to custody of the child. The father admitted
that he has had a long history of substance abuse/misuse [and
t]hat around the time of the pregnancy and birth of the child
... he and the child's mother engaged in the use of illegal
controlled substances. It should be noted that the child was
born positive for methamphetamine[], the drug of choice for
the mother and [the] father. The child was born [i]n April …
2021, and in June 2021 the father was arrested and
incarcerated for the offense of possession or receipt of a
controlled substance while he was on probation for the same
type of offense. The father remained continuously
incarcerated from June 2021 until he was sentenced to prison
in December 2021. The father remained imprisoned until his
release in July 2022 whe[n] he was sent to a substance abuse
rehabilitation program for eighteen (18) months and was

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subsequently discharged from that program in December
2023. On February 15, 2024, the child's father filed this
petition. For the majority of the child's life from birth until the
filing of this petition the father was either in jail, prison, or
rehab, abandoning this child to the care of others. This court
is convinced that the father had more than enough notice and
information that he was the father of the child, or at a
minimum enough information to act on that belief over the
course of the past three years prior to the filing of this petition
in February 2024. During that entire three-year period of time
the child has resided exclusively in the home of [C.D. and
A.D.] It was ... the father's voluntary choice to engage in the
use of illegal controlled substances to the point that it led to
his incarceration and imprisonment to his own detriment, but
all the while abandoning the needs of this child to the care of
[C.D. and A.D.] It is noteworthy that the father seems to have
addressed his substance-abuse past by remaining sober at
present; however, the court is convinced that the child's father
knew of the existence of the child at the time he was making
these decisions and voluntarily forfeited any right to the
custody of the child by engaging in these illicit behaviors. As
previously mentioned, the father knew that the mother was
pregnant, that they had been engaged in a sexual
relationship, [that] pictures of the child [reflected that the
child] looked like him as a baby, [that] he met and saw the
baby when he was a couple of days old, and [that] he provided
financial support for the benefit of the child, all prior to his
incarceration and imprisonment. [The father's] mother [C.F.]
has made a career of working with families and possessed the
inherent knowledge that comes with her profession to advise
her son, and [the father] had the resources available to him to
avail himself of any parental authority over the child;
however, he failed to do so by his own volition. [The father]
did not want to be a father to this child when this child was
born and did not want to be a father to this child for the first
three years of the child's life. Only now that he represents that
he has 'changed' and 'cleaned himself up' does he want to
assume the role of a parent. All the while, every need this

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child has had from the time he was placed in the home of
[C.D.] have been met by [C.D.] and her husband. The child
refers to [A.D. and C.D.] as 'daddy' and 'momma' and [C.D.
and A.D.] are the only mother and father this child has ever
known. The child is now three years old and has resided his
entire life in the home of [C.D. and A.D.] along with his two
half-sibling sisters. Such a significant emotional tie exists
given the length of time the child has been in the home of
[C.D. and A.D.] and severing that tie would not serve the best
interests of the child. [C.D. and A.D.'s] home is fit and
acceptable and they have all they need to properly care for the
child and meet all of the child's needs.

"The child's mother [M.R.] admits that she is not in a
position to care for the child, that she admittedly voluntarily
relinquished custody of the child at the time of the
dependency order in October 2021, and that she was in
agreement that the child should reside with [C.D.]

"The court determined that the father, [B.F.], is
exercising some visitation with the child and the parties agree
that additional visits between the father and the child would
be made available by [C.D.] The parties are in agreement, and
the Court is of the opinion that it would serve the best interest
of the child to develop a relationship with his biological father,
whom the child does not know, and that the father should be
awarded visitation with the child; however, a change in
custody would not materially promote the best interest and
welfare of the child so that the positive good brought about by
the modification would more than offset the inherently
disruptive effect of the change in custody.

"IT IS THEREFORE ORDERED as follows that the
'petition for custody,' more properly, the request to change the
current custody order is hereby DENIED and DISMISSED.
However, the [father] shall have visitation at such times and
places as the father and custodians may mutually agree upon.
In the absence of an agreement the father shall have visits

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with the child as set forth by the Visitation Schedule below
which is incorporated by reference as the Order of the Court.

"Any other relief requested not specifically addressed
herein is deemed to be denied."

(Capitalization in original.)

Following the entry of the juvenile court's judgment, the father

timely appealed.

Standard of Review

"When evidence in a child custody case has been presented ore

tenus to the [juvenile] court, that court's findings of fact based on that

evidence are presumed to be correct." Ex parte Bryowsky, 676 So. 2d

1322, 1324 (Ala. 1996). As our supreme court explained in Bryowsky,

"[t]he trial court is in the best position to make a custody determination

-- it hears the evidence and observes the witnesses." Id. An appellate

court is not permitted to reweigh the evidence or to substitute its

judgment for that of the trial court. See Phillips v. Phillips, 622 So. 2d

410, 412 (Ala. Civ. App. 1993). On the other hand, the ore tenus

presumption of correctness does not apply to a juvenile court's

conclusions regarding questions of law, and an appellate court reviews

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those conclusions de novo. See R.K. v. R.J., 843 So. 2d 774, 776 (Ala. Civ.

App. 2002).

Analysis

The father's sole argument on appeal is that the juvenile court erred

by applying the custody-modification standard set forth in Ex parte

McLendon, 455 So. 2d 863, 865 (Ala. 1984), in determining whether to

modify the child's custody instead of applying the parental-custody

presumption and the best-interest standard pursuant to Ex parte Terry,

494 So. 2d 628, 632 (Ala. 1986). We agree.

In Terry, our supreme court, quoting Ex parte Mathews, 428 So. 2d

58, 59 (Ala. 1983), held:

" '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. There are exceptions to Terry's parental presumption.

"Specifically, the parental 'presumption does not apply after [1] a

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voluntary forfeiture of custody or [2] a prior decree removing custody

from the natural parent and awarding it to a nonparent.' " Ex parte D.J.,

645 So. 2d 303, 306 (Ala. 1994) (quoting McLendon, 455 So. 2d at 865). If

one of those circumstances is proven, the Terry standard is replaced by

the McLendon standard, under which a parent will not be permitted to

reclaim custody of his or her child unless the parent demonstrates that a

change in the child's custody will materially promote the child's welfare

and that the positive good brought about by the change will more than

offset the inherently disruptive effect caused by uprooting the child. See

McLendon, 455 So. 2d at 865.

Citing D.J., the father argues that neither of the circumstances

constituting exceptions to the application of the Terry standard exist in

this case. Specifically, he argues that he could not have voluntarily

forfeited his right to custody of the child because, he says, D.J. holds that

there can be no such forfeiture before he gained a right to custody upon

the juvenile court's adjudicating him the child's legal father on June 7,

2024, after he had already begun actively prosecuting this action seeking

custody of the child. Moreover, he argues that there could be no previous

judgment removing custody of the child from him because, he says, he

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had neither actual custody of the child nor a right to custody of the child

when the juvenile court entered the judgment finding the child

dependent and transferring custody to C.D. and A.D. in 2021.

In D.J., B.W.J. was born in 1983 to V.J. and W.B.Z., who never

married. 645 So. 2d at 304. From the date of his birth until V.J. died on

April 27, 1991, B.W.J. lived with V.J., who intermittently lived with D.J.,

B.W.J.'s maternal grandmother. Id. After V.J.'s death but before July

19, 1991, the date D.J. petitioned the Mobile Juvenile Court for custody

of B.W.J., W.B.Z. petitioned the Mobile Probate Court to legitimate

B.W.J. The probate court granted W.B.Z.'s petition to legitimate B.W.J.

on September 5, 1991. Id. On November 18, 1991, the Mobile Juvenile

Court held a hearing regarding D.J.'s custody petition. Id. Thereafter,

the Mobile Juvenile Court awarded D.J. custody but awarded W.B.Z.

visitation. Id. The Mobile Juvenile Court also scheduled a second

hearing to review " 'whether or not the child [had so] progressed in his

relationship with [W.B.Z.] ... that it would be appropriate for the child to

be placed in the home of [W.B.Z.].' " Id. at 304-05. Following that second

hearing, the Mobile Juvenile Court entered an order stating, among other

things, that W.B.Z. and his wife were "able and anxious to provide for the

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child" but further stating " 'that it is in the best interest of [B.W.J.] that

custody remain with [D.J.] ... and that a change in custody to [W.B.Z.]

would not materially promote the child's welfare so as to overcome the

inherently disruptive effect caused by uprooting the child.' " Id. at 305.

In effect, the Mobile Juvenile Court applied the McLendon standard

rather than the Terry standard in resolving whether W.B.Z. should have

custody of his child.

W.B.Z. appealed to this court, which reversed the Mobile Juvenile

Court's judgment, holding that the Mobile Juvenile Court had erred

because it did not afford W.B.Z. the benefit of a parental presumption,

i.e., a presumption that the interests of B.W.J. would best be served by

placing the child in his custody absent a finding that he was unfit. Id.

D.J. then petitioned our supreme court for a writ of certiorari, which that

court granted. Id.

Our supreme court held that, in a custody contest between a

nonparent and one who has been adjudicated to be the natural father of

a child born out of wedlock, the father is entitled to the presumption that

the child's interests will best be served by an award of custody to him,

subject to the absence of a finding that he is unfit and subject to the

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exceptions that apply when the father has voluntary forfeited custody or

when a prior custody judgment removing custody from the father and

awarding it to a nonparent exists. Id. at 306-08. Our supreme court

further held that, when those exceptions apply, the unwed father would

not be permitted to reclaim the custody of the child unless he can show

that a change of custody will materially promote his child's welfare. Id.

Our supreme court noted that the Mobile Juvenile Court had

applied the standard required when those exceptions to the parental

presumption apply and examined whether those exceptions existed in

that case. Id. Regarding the issue whether W.B.Z. had voluntarily

forfeited his right to custody, our supreme court wrote:

"Guided by [the] rule [that mothers of children born out
of wedlock have a superior right to custody of those children],
we conclude that W.B.Z., a putative father who, before V.J.'s
death never possessed legal or physical custody of his
unlegitimated child, acquired no custody rights that could
have been relinquished to V.J. Custody vested exclusively in
V.J. at the birth of her child and remained there until she died
on April 27, 1991. W.B.Z. did not, therefore, relinquish any
custody rights before V.J.'s death, because -- vis-à-vis V.J., at
least -- he possessed none. Moreover, his promptness in
initiating legitimation proceedings and in seeking custody
after her death conclusively rebuts any contention that he
relinquished custody rights thereafter. Thus, we conclude
that the 'relinquishment' exception to the parental
presumption provided no basis for the standard applied by the
trial court in this case."

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Id. at 307 (footnote omitted).

With respect to the prior-custody-judgment exception, our supreme

court held that "because W.B.Z. had not acquired custody before

November 18, 1991, it can hardly be contended that the order on that

date 'removed' or transferred custody from him. Therefore, we conclude

that the 'prior[-] decree' exception to the parental presumption provided

no basis for the standard applied by the trial court in this case." Id. at

308. Thus, the supreme court affirmed this court's reversal of the trial

court's judgment, holding that the trial court had improperly failed to

apply the Terry standard in resolving W.B.Z.'s claim to custody of his

child.

In 2005, in Ex parte G.C., 924 So. 2d 651, 657 (Ala. 2005), our

supreme court interpreted its holding in D.J., writing:

"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."

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(Emphasis added.) 1 Additionally, in R.K. v. R.J., 843 So. 2d 774, 782 (Ala.

Civ. App. 2002), this court interpreted the relevant holding of D.J. in a

similar manner, writing:

"The State may decide, insofar as state law is concerned, that
the physical abandonment of a child by an unwed, biological
father (in contrast to such father's abandonment of
adjudicated paternity rights), should not prevent such a
father from being on an equal presumptive footing with a fit,
custodial mother -- and on better footing than all other
parties, regardless of their historical relationships with the
children -- if and when such a father's paternity is eventually
adjudicated. Indeed, Ex parte D.J. appears to do that."

(Emphasis added.) See also R.O.M. v. B.B., 854 So. 2d 98, 105 (Ala. Civ.

App. 2003) (Murdock, J., concurring) ("Ex parte D.J. stands for the

proposition that if the issue in a custody case is whether a parent has

voluntarily relinquished that custody, a trial court may not consider

evidence of the parent's actual physical or psychological abandonment of

1Although, on its face, the main opinion in G.C. appears to be a

plurality opinion, with only four justices concurring or concurring
specially in it, at least one more justice who wrote separately appeared
to concur with the main opinion's explanation of the holding in D.J. that
the relevant period to examine whether a father has relinquished his
right to custody of his child does not begin until the child has been
legitimated. G.C., 924 So. 2d at 669 (See, J., concurring in part and
dissenting in part).
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the child that occurs before the parent is legally declared by a court to be

the parent.").

Based on our supreme court's holding in D.J. and its later

interpretation of that holding in G.C., because he had not been

adjudicated the legal father of the child until June 4, 2024, the father

could not have voluntarily forfeited his right to custody of the child before

June 4, 2024, and his prosecution of the present action, which he initiated

several months earlier, establishes that he had not voluntarily forfeited

his right to custody after June 7, 2024. Moreover, under D.J., because he

had not been adjudicated the legal father of the child before June 7, 2024,

and, thus, had no right to custody of the child before June 7, 2024, the

2021 dependency judgment transferring custody of the child to C.D. and

A.D. could not be considered a prior judgment removing the child from

his custody. D.J., 645 So. 2d at 308. Consequently, neither of the

exceptions to the Terry presumption that the child's interests will best be

served by an award of custody to the father apply in this case.

Accordingly, based on our supreme court's holding in D.J. and its

later interpretation of that holding in G.C., we conclude that the juvenile

court was required to consider the father's claim for custody of the child

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under the Terry standard rather than under the McLendon standard.

Specifically, the juvenile court was required to presume that awarding

custody of the child to the father was in the child's best interest unless it

concluded that the father was unfit. The juvenile court having applied

the wrong standard, we must reverse the judgment and remand the cause

to the juvenile court with instructions to reconsider the father's petition

under the correct standard.

Conclusion
Because the juvenile court erred in applying the McLendon

standard instead of the Terry standard in resolving the father's claim to

custody of the child, we reverse the juvenile court's judgment and remand

the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Moore, P.J., concurs specially, with opinion, which Edwards,

Hanson, Fridy, and Bowden, JJ., join.

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MOORE, Presiding Judge, concurring specially.

I reluctantly concur in the reversal of the judgment entered by the

Coffee Juvenile Court ("the juvenile court") because this court is bound

by the decisions of the Alabama Supreme Court. See Ala. Code 1975, §

12-3-16. As the main opinion holds, the supreme court's decisions in Ex

parte D.J., 645 So. 2d 303 (Ala. 1994), and Ex parte G.C., 924 So. 2d 651

(Ala. 2005), control the outcome of this case. I write specially to express

my disagreement with those decisions and to urge the supreme court to

overrule them.

In Ex parte D.J., V.J., the mother, and W.B.Z., the putative father,

had never married, but they conceived a child together, B.W.J., who was

born in 1983. V.J. and B.W.J. intermittently resided with D.J., the child's

maternal grandmother. In 1991, V.J. unexpectedly died. W.B.Z.

subsequently commenced legitimation proceedings regarding B.W.J.,

and D.J. filed a petition to obtain custody of B.W.J. in the Mobile Juvenile

Court, which awarded her pendente lite custody. Upon a final hearing,

the Mobile Juvenile Court awarded D.J. custody of B.W.J. On appeal,

this court reversed the judgment, holding that the Mobile Juvenile Court

had erred in failing to apply the parental presumption in favor of W.B.Z.

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See W.B.Z. v. D.J., 645 So. 2d 300 (Ala. Civ. App. 1993). Upon a petition

for the writ of certiorari, the supreme court affirmed our decision.

In Ex parte Terry, 494 So. 2d 628 (Ala. 1986), our supreme court

held that, in a child-custody dispute between a parent and a nonparent,

the parent has a presumptive right to the custody of his or her child. In

Ex parte D.J., the supreme court determined that the "parental

presumption" recognized in Ex parte Terry applies equally to a putative

father of a child born out of wedlock because, it said, like any other

natural parent, a putative father enjoys a prima facie right to the custody

of his child as against a nonparent. The supreme court then explained

that the parental presumption " 'does not apply after [1] a voluntary

forfeiture of custody or [2] a prior decree removing custody from the

natural parent and awarding it to a nonparent.' " 645 So. 3d at 306

(quoting Ex parte McLendon, 455 So. 2d 863, 865 (Ala. 1984)). The

supreme court decided that neither exception applied to W.B.Z. First,

the supreme court held that W.B.Z. could not have voluntarily

relinquished custody of B.W.J. to V.J. and D.J. because, the court noted,

under the common law, V.J. had a right to exclusive custody of B.W.J.

until her death. The supreme court then said:

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"Guided by this rule, we conclude that W.B.Z., a putative
father who, before V.J.'s death never possessed legal or
physical custody of his unlegitimated child, acquired no
custody rights that could have been relinquished to V.J.
Custody vested exclusively in V.J. at the birth of her child and
remained there until she died on April 27, 1991. W.B.Z. did
not, therefore, relinquish any custody rights before V.J.'s
death, because -- vis-à-vis V.J., at least -- he possessed none.
Moreover, his promptness in initiating legitimation
proceedings and in seeking custody after her death
conclusively rebuts any contention that he relinquished
custody rights thereafter. Thus, we conclude that the
'relinquishment' exception to the parental presumption
provided no basis for the standard applied by the trial court
in this case."

645 So. 2d at 307. Second, the supreme court then held that the prior-

judgment exception did not apply because W.B.Z. had never acquired

custody of B.W.J. and no final judgment had been entered removing or

transferring the custody of B.W.J. from him before the present litigation.

645 So. 2d at 307-08.

In R.K v. R.J., 843 So. 2d 774, 781 (Ala. Civ. App. 2002), this court

misconstrued Ex parte D.J. as holding that, until a putative father has

been legally adjudicated to be the father of a child born out of wedlock,

he has no custodial rights to forfeit. This court held that, in determining

whether a voluntary forfeiture has occurred, a trial court can consider

only the conduct of a putative father after his paternity has been

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judicially established. In R.O.M. v. B.B., 854 So. 2d 98 (Ala. Civ. App.

2003), Judge Murdock stated in a special writing concurring in the result

that

"Ex parte D.J. stands for the proposition that if the issue in a
custody case is whether a parent has voluntarily relinquished
that custody, a trial court may not consider evidence of the
parent's actual physical or psychological abandonment of the
child that occurs before the parent is legally declared by a
court to be the parent."

854 So. 2d at 105 (Murdock, J., concurring in the result). Actually, Ex

parte D.J. did not hold that voluntary relinquishment by a putative

father may occur only after his paternity has been judicially established;

instead, the supreme court held that W.B.Z. had acquired custody rights

to B.W.J. once V.J. lost custody of B.W.J. due to her death, and the

supreme court examined the actions of W.B.Z. following that loss of

custody, not just his actions after he had legitimated B.W.J., in deciding

whether he had voluntarily relinquished his custody rights. See Ex parte

G.C., 924 So. 2d at 684 n.23 (Parker, J., dissenting) (explaining the

substance of the holding of Ex parte D.J.). Thus, Ex parte D.J. holds that

a trial court should consider the conduct of a putative father following

the mother's loss of the custody of her child because that is when he gains

a superior right to custody of the child.

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Nevertheless, in Ex parte G.C., Justice Stuart, writing for the court,

adopted this court's misinterpretation of Ex parte D.J., stating:

"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)."

924 So. 2d at 657. Thus, in determining whether G.C., Jr., the putative

father in that case, had voluntarily forfeited his custodial rights to J.G.C.,

his child born out of wedlock, the supreme court considered only the

conduct of G.C., Jr., after August 2000, when he was legally declared to

be the father of J.G.C. Id. A close reading of the several special writings

in Ex parte G.C. shows that a majority of the court -- Chief Justice Nabers

and Justices Smith, Bolin, See, and Lyons -- concurred with the

voluntary-forfeiture analysis used by Justice Stuart. So, as the law

stands today, when determining whether a putative father has

voluntarily relinquished his custodial rights to a child, a trial court may

consider only evidence of his conduct occurring after his paternity has

been established and must disregard any conduct occurring from the time

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the child is born to the date of the adjudication of paternity. In my

opinion, that statement of the law is clearly erroneous.

In Daniels v. Trawick, 232 Ala. 466, 467, 168 So. 551, 551 (1936), a

young couple married, but separated after the wife gave birth to a child.

A few weeks after the child was born, the wife and the child moved in

with the child's maternal grandparents, while the husband resided

separately on his family's farm. When the child was still an infant, the

wife suffered a fatal illness, and, as a dying request, she indicated that

she wanted the maternal grandparents to raise the child. A custody

dispute arose between the husband, the presumed father of the child, and

the maternal grandparents, and the trial court awarded custody of the

child to the maternal grandparents. The supreme court affirmed the

judgment, saying:

"The prima facie right is with the father. ... The parent may
forfeit this prima facie right by his conduct ..., and there is
evidence justifying the conclusion that [the husband] was
unkind and inattentive to his wife during her illness and
indifferent to the child and its welfare (refusing to provide for
it, except upon unjustifiable conditions), while [the maternal
grandparents] were caring for them both in their humble
home."

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232 Ala. at 467, 168 So. at 552. Daniels shows that a natural father may,

by his indifferent conduct toward a child and refusal to provide for the

child as a father should, forfeit his right to custody of the child.

In Ex parte D.J., when B.W.J. was three years old, W.B.Z. moved

to Texas. While residing in Texas, W.B.Z. had only negligible

involvement with B.W.J. W.B.Z. did not attempt to legitimate B.W.J. or

obtain his custody until after V.J. died. See W.B.Z. v. D.J., 645 So. 2d at

303 (Thigpen, J., concurring in part and dissenting in part). Under the

reasoning of Daniels, W.B.Z., by his indifference toward B.W.J. over

many years, forfeited his parental presumption; however, in Ex parte

D.J., the supreme court did not analyze the case to determine whether

W.B.Z. had forfeited his parental presumption; instead, it analyzed the

case to determine whether W.B.Z. had "voluntarily relinquished" his

custody rights to the child, i.e., whether he had voluntarily and

intentionally surrendered a known right. 645 So. 2d at 306. The supreme

court reasoned that a putative father cannot relinquish his custody rights

to a child born out of wedlock to the mother of that child because, as

against the mother, he has no custody rights. The supreme court said:

"[A] fortiori, [a putative father] cannot waive or relinquish a right that

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does not exist." 645 So. 2d at 307. The supreme court determined that

W.B.Z. had received custody rights to the child only upon the death of the

mother, and, therefore, it said, he could relinquish those rights only after

that point. Accordingly, the supreme court confined its examination of

the evidence to the actions of W.B.Z. after the date of the mother's death,

which showed that he was enforcing his custody rights, and it

disregarded W.B.Z.'s actions during the years when he had acquiesced in

V.J.'s and D.J.'s providing almost exclusive care for the child. As a result,

W.B.Z., a man who was almost a complete stranger to B.W.J., was

determined to be entitled to custody without even a consideration of

whether that custody arrangement would serve the best interests of the

child.

A comparison with Daniels shows that the holding in Ex parte D.J.

bestows upon a putative father a parental presumption even stronger

than the one bestowed on a presumed father -- a presumed father must

act as a parent toward his child from the time the child is born, or

otherwise forfeit his parental presumption, whereas a putative father can

fail or refuse to act as a parent toward his child so long as the mother is

exercising her superior right to custody, and his misconduct will not

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affect his right to the parental presumption once the mother dies or

otherwise loses custody of the child. In essence, the supreme court held

that a putative father cannot forfeit his custodial rights regardless of his

misconduct toward the child until the law bestows upon him primary

custody rights to the child. The supreme court justified this disparity in

treatment solely on the nature of the legal rights of a putative father to

a child born out of wedlock.

It appears that the supreme court mischaracterized the nature of

the custody rights of a putative father. Formerly, the putative father of

a child born out of wedlock had no right to custody of the child, see

Matthews v. Hobbs, 51 Ala. 210 (1874), but, in 1917, the supreme court

held that a "putative father is entitled to the ... custody [of a child born

out of wedlock] as against any person but the mother." Garrett v.

Mahaley, 199 Ala. 606, 608, 75 So. 10, 11 (1917). See also Ex parte

Shuttleworth, 410 So. 2d 896, 899 (Ala. 1981); Griggs v. Barnes, 262 Ala.

357, 78 So. 2d 910 (1955); and Lewis v. Crowell, 210 Ala. 199, 200, 97 So.

691, 692 (1923). Thus, a putative father has at least secondary custody

rights to a child born out of wedlock from the time the child is born.

Furthermore, a putative father can acquire the same custody rights as

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the mother by legitimating the child. See B.E.B. v. H.M., 822 So. 2d 429,

431 (Ala. Civ. App. 2001) (holding that, upon legitimation of a child born

out of wedlock, the putative father and the mother stand on equal footing

in a custody dispute). If a putative father does not legitimate the child,

he still has a right to form and engage in a paternal relationship with the

child that the mother cannot unilaterally thwart. See D.W. v. J.W.B.,

230 So. 3d 763, 775 (Ala. Civ. App. 2015), rev'd, Ex parte J.W.B., 230 So.

3d 783 (Ala. 2016). If a putative father avails himself of the unique

opportunity presented by his biological connection to a child to fully

commit to the rearing of the child, he is entitled to the same rights under

federal law as a presumed father. See Lehr v. Robertson, 463 U.S. 248,

261-62 (1983). If a putative father does not act as a parent toward the

child, the state is not obligated to give special consideration to his

interests when deciding the custody of his child. Id.

In Ex parte D.J., the supreme court excused W.B.Z. from acting as

a real father toward the child on the ground that he had no custody rights

to the child when, in fact, he did have certain custody rights that he did

not seek to enforce while V.J. and D.J. cared for the child, such as the

right to visitation, see Bagwell v. Powell, 267 Ala. 19, 22, 99 So. 2d 195,

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197 (1957), the right to legitimate the child, see Ala. Code 1975, § 26-11-

2, and the right to petition for custody of the child. See B.E.B., supra.

During V.J.'s lifetime, W.B.Z. not only chose not to enforce his legal rights

to assure a relationship with B.W.J., but he also intentionally absented

himself from B.W.J. by moving to Texas and engaging in only negligible

contact with B.W.J. for over five years. Yet, that abandonment and its

undoubted effect on B.W.J. was not even allowed to be considered in

deciding who should receive custody of B.W.J. after V.J. died because,

theoretically, W.B.Z. had no custody rights to B.W.J. to relinquish before

her death.

Our legislature recognizes that a putative father may forfeit his

rights to a child born out of wedlock before he has acquired any custody

rights vis-a-vis the mother. See Ala. Code 1975, § 26-10C-1(i) ("Any

person who claims to be the natural father of a child and fails to file his

notice of intent to claim paternity pursuant to subsection (a) prior to or

within 30 days of the birth of a child born out of wedlock, shall be deemed

to have given an irrevocable implied consent in any adoption

proceeding."); Ala. Code 1975, § 26-10E-9 (stating that a putative father

who abandons the mother for four months while knowing she is pregnant

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is presumed to have impliedly consented to relinquish the unborn child

for adoption). Our supreme court should also recognize that a putative

father may forfeit his right to the parental presumption before he has

acquired full custody rights to a child. The fact that the mother is

exercising her superior custody rights to a child should not relieve a

putative father of discharging his parental responsibilities to and for the

child, even if his custody rights are considered secondary in nature. Ex

parte D.J. should be overruled. See R.K. v. R.J., 843 So. 2d at 780 (noting

irreconcilable tension between the holding in Ex parte D.J. and other

child-custody cases). A child born out of wedlock deserves the love,

affection, and care of both parents, just as a child born in wedlock, and,

if the putative father fails to act as a real parent toward his child from

the time the child is born, he should not benefit from any presumption

that he is entitled to custody after the mother loses custody of the child.

Likewise, the supreme court should overrule Ex parte G.C. The

custodial rights of a putative father do not arise solely when paternity is

judicially established, but, as shown, a putative father has certain limited

custodial rights from the time the child is born based strictly on his

relationship to the child and any greater inchoate custody rights he may

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have ripen once the mother loses custody of the child. In cases in which

the relationship between the putative father and the child is questioned,

a judicial declaration of paternity may be necessary to settle the dispute,

but that declaration is not the source of the putative father's rights. A

trial court should not be precluded from considering the circumstances

existing before paternity is judicially established in deciding whether a

putative father should be entitled to the parental presumption. If a

putative father knows, or should know, of his paternity of a child born

out of wedlock and fails to seize his opportunity to forge a paternal

relationship with the child, the trial court should be allowed to determine

that he has voluntarily forfeited his presumptive right to custody of the

child. See, e.g., K.C. v. D.C., 891 So. 2d 346, 349 (Ala. Civ. App. 2004)

(holding that, once the mother of a child born out of wedlock

acknowledged that she could not properly rear the child and asked her

parents to assume custody of the child, the putative father had a superior

right to custody of the child and his failure to act upon it resulted in a

voluntary forfeiture of his rights, even though he had never been

adjudicated to be the legal father of the child). Nothing in the law

supports the rule adopted in Ex parte G.C.

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In this case, the juvenile court determined that the parental

presumption did not apply primarily because B.F. ("the father") had

voluntarily forfeited his custodial rights to S.G.R. ("the child"). The

evidence in the record shows that, in 2020, the father engaged in a

nonexclusive sexual relationship with M.R. ("the mother"). At the time,

both the mother and the father were methamphetamine addicts. After

the mother became pregnant, she informed the father that he or another

man could be the father of her unborn child. On April 29, 2021, the

mother gave birth to the child out of wedlock; the child was born with

methamphetamine in his system. Believing that the child physically

resembled the father, the mother informed the father that he was the

biological father of the child, but the father had heard rumors that the

mother had identified other men as the father of the child, so he did not

accept his paternity. Nevertheless, a few days after the child was born,

the father met the child and purchased formula for the child, with the

knowledge that the child may be his son. The father did not forge any

relationship with the child, however. In June 2021, the father went to

jail for a drug-related offense; on December 9, 2021, he went to prison; on

July 14, 2022, he was released from prison into a drug-rehabilitation

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facility; and, in December 2023, he was released from the drug-

rehabilitation facility.

In June 2021, while the father was in jail, the mother agreed to a

safety plan for the child with the Coffee County Department of Human

Resources ("DHR") pursuant to which the child was placed with C.D. and

A.D. ("the custodians"), who were already exercising custody of the

mother's two older children by another man. DHR subsequently

commenced in the juvenile court a dependency action regarding the child.

On October 4, 2021, the juvenile court entered a final judgment ("the

dependency judgment"), finding the child to be dependent and awarding

permanent custody of the child to the custodians. The father was not

served with notice of the dependency proceedings or the dependency

judgment; the dependency judgment indicated that the father of the child

was unknown at the time and that no man had come forward to be

adjudicated as the father of the child. However, while in jail, the father

learned from C.F., his mother and the child's paternal grandmother, who

was a social worker who often worked with DHR, that the mother had

lost custody of the child. After learning of the circumstances of the child,

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the father did not take any action to intervene in the dependency

proceedings.

Following the dependency proceedings, the mother sent the father

photographs of the child and steadfastly insisted that the father was the

biological father of the child. The mother also asked C.F. to send her

photographs of the father as an infant so that she could compare the

father's and the child's features. C.F. sent the mother the requested

photographs to assist the mother in identifying the biological link

between the father and the child. The father testified that, after viewing

the photographs, he had been excited about the prospect of his fatherhood

of the child, but, he said, because he knew that he was going to prison

and then to rehabilitation, he had not taken any action toward

establishing his paternity of or a relationship with the child.

In approximately June 2023, while he was still in the drug-

rehabilitation facility, the father reached out to the custodians about the

child, but, according to the father, they blocked his inquiries. The father

did not take any additional action at that time to press his custodial

rights. In January 2024, approximately six weeks after the father

completed his drug-rehabilitation program, the father finally retained an

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attorney regarding the matter. On February 15, 2024, the father filed a

"Petition to Determine Paternity and Custody" in the juvenile court. On

June 7, 2024, the juvenile court, based on genetic testing establishing the

father's paternity of the child, adjudicated the father to be the biological

and legal father of the child. The juvenile court proceeded to trial on the

father's claims for paternity and/or visitation with the child, treating

those claims as a petition to modify the October 4, 2021, judgment.

Ultimately, on January 5, 2025, the juvenile court entered a final

judgment maintaining custody of the child with the custodians but

awarding the father visitation with the child.

The juvenile court held that the action was a child-custody-

modification action governed by the standard set forth in Ex parte

McLendon, 455 So. 2d 863 (Ala. 1984), requiring the father to prove that

a change of custody from the custodians would materially promote the

best interests of the child such that the positive benefit to the child would

overcome the inherently disruptive effect of the change. The juvenile

court rejected the father's argument that he was entitled to the parental

presumption. In the final judgment, the juvenile court explained its

reasoning:

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"In this instant matter there is a clear prior decree, the order
in [the dependency proceedings] dated October 4, 2021.
Although at the time of that order the father of the child was
unknown and [the father] was not noticed of that proceeding,
this Court is satisfied that the [father] had more than enough
notice, information, and belief that he was the biological
father of the child and failed to avail himself of the rights of a
father and that through his own actions voluntarily forfeited
any right to custody of the child. The father admitted that he
has had a long history of substance abuse/misuse [and t]hat
around the time of the pregnancy and birth of the child ... he
and the child's mother engaged in the use of illegal controlled
substances. It should be noted that the child was born positive
for methamphetamine[], the drug of choice for the mother and
[the] father. The child was born on April 29, 2021, and in June
2021 the father was arrested and incarcerated for the offense
of possession or receipt of a controlled substance while he was
on probation for the same type of offense. The father remained
continuously incarcerated from June 2021 until he was
sentenced to prison in December 2021. The father remained
imprisoned until his release in July 2022 when he was sent to
a substance abuse rehabilitation program for eighteen (18)
months and was subsequently discharged from that program
in December 2023. On February 15, 2024, the child's father
filed this petition. For the majority of the child's life from birth
until the filing of this petition the father was either in jail,
prison, or rehab, abandoning this child to the care of others.
This Court is convinced that the father had more than enough
notice and information that he was the father of the child, or
at a minimum enough information to act on that belief over
the course of the past three years prior to the filing of this
petition in February 2024. During that entire three-year
period of time the child has resided exclusively in the home of
the [custodians]. It was ... the father's voluntary choice to
engage in the use of illegal controlled substances to the point
that it led to his incarceration and imprisonment to his own
detriment, but all the while abandoning the needs of this child
to the care of the [custodians]. It is noteworthy that the father

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seems to have addressed his substance abuse past by
remaining sober at present; however, the Court is convinced
that the child's father knew of the existence of the child at the
time he was making these decisions and voluntarily forfeited
any right to the custody of the child by engaging in these illicit
behaviors. As previously mentioned, the father knew that the
mother was pregnant, that they had been engaged in a sexual
relationship, [that] pictures of the child [reflected that the
child] looked like him as a baby, he met and saw the baby
when he was a couple of days old, and he provided financial
support for the benefit of the child, all prior to his
incarceration and imprisonment. [The paternal grandmother]
has made a career of working with families and possessed the
inherent knowledge that comes with her profession to advise
her son, and [the father] had the resources available to him to
avail himself of any parental authority over the child;
however, he failed to do so by his own volition. [The father]
did not want to be a father to this child when this child was
born and did not want to be a father to this child for the first
three years of the child's life. Only now that he represents that
he has 'changed' and 'cleaned himself up' does he want to
assume the role of a parent. All the while every need this child
has had from the time he was placed in the home of [the
custodians] have been met by [the custodians]. The child
refers to [the custodians] as 'daddy' and 'momma' and [the
custodians] are the only mother and father this child has ever
known. The child is now three years old and has resided his
entire life in the home of [the custodians] along with his two
half-sibling sisters. Such a significant emotional tie exists
given the length of time the child has been in the home of [the
custodians] and severing that tie would not serve the best
interests of the child. The [custodians'] home is fit and
acceptable and they have all they need to properly care for the
child and meet all of the child's needs."

In my opinion, the juvenile court correctly decided the case under

the law as espoused in Daniels, supra, and a legion of other cases. The

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juvenile court reconciled conflicting evidence regarding the father's

knowledge of his paternity, and, based upon its firsthand observations, it

determined that the father knew or should have known that he was the

biological father of the child soon after the child was born. The juvenile

court assessed the father's conduct toward the child from that point and

concluded that the father had not acted as a concerned parent toward the

child for the first three years of his life. The juvenile court determined

that the father had thereby voluntarily forfeited his presumptive right to

custody, and it assessed the case to determine whether the best interests

of the child would be materially promoted by a change of custody to the

father. The father does not contest the ultimate determination denying

his custody claim; he appeals the judgment by asserting only that the

juvenile court should have applied the parental presumption. The

judgment would be affirmed if Daniels remained in place.

I agree, however, with the main opinion that the judgment violates

the law as set forth in Ex parte D.J. and Ex parte G.C. Under Ex parte

D.J., as misinterpreted by Ex parte G.C., when deciding whether the

father had voluntarily forfeited his custody rights, the juvenile court

could not consider the conduct of the father before June 7, 2024, when it

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adjudicated the paternity of the child. The juvenile court was required

to close its eyes to the abandonment of the child by the father before June

7, 2024, and to pretend that the father was an active parent entitled to

the parental presumption. However, the juvenile court did not apply that

standard; instead, it based its finding of voluntary forfeiture exclusively

on the conduct of the father before the paternity adjudication. This case

clearly reveals how the opinions in Ex parte D.J. and Ex parte G.C. lead

to unjust results. Upon reexamination, our supreme court should

recognize the errors in those opinions. Unless and until they are

overruled, however, those cases must be followed.

Finally, I have considered whether the judgment can be affirmed

on the alternative ground that a prior judgment had removed the child

from the custody of the father. However, I am compelled to agree with

the main opinion that, because the father had not acquired any custody

rights to the child before the dependency judgment was entered on

October 4, 2021, at least according to Ex parte D.J., 645 So. 2d at 308,

that judgment did not remove the child from the custody of the father. I

note that the supreme court has held that, "[a]fter a juvenile court has

placed a dependent child into the custody of a proper caregiver,

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consideration of a change of custody is conducted pursuant to the

standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). See

Ex parte J.P., 641 So. 2d 276, 278 (Ala. 1994)." Ex parte S.L.M., 171 So.

3d 673, 677 (Ala. 2014). See also Ex parte D.B., 255 So. 3d 755, 756 (Ala.

2017) ("[I]t is undisputed that, in order to succeed in her request to

modify custody [of a final custodial judgment in a dependency

proceeding], the mother was required to meet the well settled custody-

modification standard set forth in Ex parte McLendon ...."). The

McLendon standard does not include the parental presumption. See

Gallant v. Gallant, 184 So. 3d 387 (Ala. Civ. App. 2014). However, I have

been unable to locate any case in which a parent who was not a party to

a dependency judgment involving his or her child was required to meet

the McLendon standard when seeking custody of his or her child, and the

holding in Ex parte D.J. suggests otherwise. Therefore, I agree with the

main opinion that the juvenile court erred insofar as it concluded that

the father was not entitled to the parental presumption based on the

entry of the dependency judgment.

Edwards, Hanson, Fridy, and Bowden, JJ., concur.

38