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Ex parte Berryhill - 410 So. 2d 416 (Ala. 1982)

Rule:

It is a fair presumption, that so long as children are under the control of their parents, they will be treated with affection, and their education and morals will be duly cared for. So strong is the presumption, that the care which is prompted by the parental instinct, and responded to by filial affection, is most valuable of all, and so great is the reluctance of the court to separate a child of tender years from those who according to the ordinary laws of human nature, must feel the greatest affection for it, and take the deepest interest in its welfare, that the parental authority will not be interfered with, except in case of gross misconduct or where, from some other cause, the parent wants either the capacity or the means for the proper nurture and training of the child. Where a contest for the custody of a child arises between its father or mother and a third person, the superior claim of the parent ought not, in our opinion, to be disturbed, unless it plainly appears that the interests of the child require it to be set aside.

Facts:

The father objected to an in camera interview with the child and to being asked whether he had killed anyone during the child custody proceeding. The father petitioned for a writ of certiorari regarding a judgment of the Court of Civil Appeals (Alabama), which found that the father's age, lack of financial support, and lack of parental interest overcame the strong presumption that the father was a fit parent for his child, who was in the custody of the stepfather after the mother died.

Issue:

Did the Court of Civil Appeals apply the correct standards of law in this child custody case?

Answer:

No.

Conclusion:

In granting the writ of certiorari, the court found that the appellate court utilized the wrong test of parental qualification for the custody of the child. The father's superior claim should not have been disturb unless it plainly appeared that the interest of the child required it to be set aside. The appellate court's reference to the father's age and financial condition did not establish clear and convincing evidence that the father was unfit as a parent. The trial court judge also erred when he interviewed the child in his chambers despite the father's objection. Ala. R. Civ. P. 43 provided that the child's testimony should have been taken orally in open court, and there was no exception for the in camera examination of the child without the presence or consent of the parties. The question about whether the father had ever killed anyone was admissible because the father's character was in issue and the question was relevant to show a specific act of bad character bearing on his fitness as a parent.

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