Ex Parte Mathews

428 So. 2d 58 (1983)

Ex parte Susan D. MATHEWS.
(In re: Susan D. Mathews v. Guy E. Mathews and Larkin DeShazer, et al. v. Susan D. Mathews, et al.)

No. 82-237.

Supreme Court of Alabama.

February 25, 1983.

Robert C. Barnett of Barnett, Tingle, Noble & Sexton, Birmingham, for petitioner.

J. Gary Pate and Charles J. Najjar of Najjar, Najjar, Boyd & Pate, Birmingham, for respondents.

PER CURIAM.

Petition for writ of certiorari to the Court of Civil Appeals is denied. In denying Petitioner's request for review in this case, we are constrained to clarify certain statements of law set forth in the appellate court's opinion in support of its affirmance of the trial court's award of custody of a three-year-old child to a nonparent. The Court of Civil Appeals' opinion, quoting from Palmer v. Pierce, 387 So. 2d 215 (Ala. Civ.App.1980), states:

"While it is true that a natural parent has a prima facie right under the law to custody of his or her child, the primary consideration in a child custody case is that the determination be based on the best interest and welfare of the child.... That determination must come from the evidence and each case must be decided on its own facts."

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 this 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. Hanlon v. Mooney, 407 So. 2d 559 (Ala.1981).

WRIT DENIED.

TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.