Grant v. Grant

HOLMES, Judge.

This is a child custody case.

A divorce was granted, and custody of the four minor children was awarded to the father.

The mother appeals and we affirm.

The dispositive issue on appeal is whether the trial court abused its discretion in awarding custody of the children to the father.

At the outset we note that there is a strong presumption in favor of the trial court’s findings in child custody cases. Cory v. Cory, 429 So.2d 1096 (Ala.Civ.App.1983). As in all cases where judgment is rendered after an ore tenus hearing, the judgment of the trial court is presumed correct and will be reversed on appeal only if found to be plainly and palpably wrong. Cokely v. Cokely, 469 So.2d 635 (Ala.Civ.App.1985). We may not substitute our judgment for that of the trial court. Smith v. Smith, 448 So.2d 381 (Ala.Civ.App.1984).

The mother argues that there was insufficient evidence presented to prove that she was an unfit parent and custody should, therefore, not have been awarded to the father. The mother’s contention is misplaced.

It must be recognized that the mother is no longer given the legal presumption of primary right to custody of even small children in the event of divorce. Smith, 448 So.2d 381; Devine v. Devine, 398 So.2d 684 (Ala.Civ.App.), cert. denied, 398 So.2d 686 (Ala.1980). There is no law in this state which gives to either parent priority as to the right of custody. Cory, 429 So.2d 1096. The polestar in custody matters now is truly the best interests of the child.

This court pretermits a detailed summary of the evidence. However, we do note that there was evidence that the mother was having an “adulterous relationship” which led her to leave her very young children home alone at nights. Further, the record reveals that the father wanted the children to live with him and has made arrangements for them to do so.

In any event, suffice it to say that we have carefully read the transcript, and in view of the above-stated principles of law, we find no plain and palpable abuse of discretion by the trial court in awarding custody of the minor children to the father.

This case is due to be affirmed.

AFFIRMED.

BRADLEY, P.J., and INGRAM, J., concur.