author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    Tina LANG v. Michael LANG.
    2090490.
    Court of Civil Appeals of Alabama.
    Oct. 29, 2010.

      Jeffrey G. Rainer and Nancy J. Rainer of Rainer & Rainer, LLC, Tuscaloosa, for appellant.

      John A. Russell III and John A. Russell IV of Russell & Russell, P.C., Aliceville, for appellee.
   THOMPSON, Presiding Judge.

Tina Lang (“the mother”) appeals from a judgment modifying custody of the parties’ three children. The mother had been awarded primary physical custody of the children when she and Michael Lang (“the father”) divorced in December 2004. In the judgment at issue, the trial court awarded custody of the two younger children to the father; it awarded custody of the oldest child to the children’s maternal grandparents. The children were 16, nine, and six years old at the time of trial. The youngest child is a boy; the older two children are girls.

The record indicates the following. In August 2006, the father filed a petition seeking to hold the mother in contempt for staying overnight with a member of the opposite sex while the children were present, in contravention of the divorce judgment. The father also requested custody of the parties’ three children. The mother then filed a motion seeking to hold the father in contempt for his failure to pay child support and for his failure to exercise visitation with all the children. The mother asserted that the father visited with only one child and took only one child for summer vacation. The mother and the father settled their differences at that time, and the trial court incorporated then-agreement into a judgment entered on August 23, 2006. In that judgment, the trial court also held the mother in contempt for her admitted violation of the cohabitation provision of the divorce judgment. In the August 23, 2006, judgment, the trial court also stated: “The parties have agreed that no future custody petitions shall be filed based on the co-habitation issue which is being resolved by this order.”

On March 26, 2007, the father filed another petition for a custody modification, alleging that the mother had violated the August 23, 2006, order enforcing the provision in the divorce judgment forbidding the mother to cohabitate. In his petition, the father sought custody of the parties’ middle child and asked that custody of the oldest and youngest children be awarded to the maternal grandparents. The same day — March 26, 2007 — the trial court entered an ex parte order awarding pendente lite custody of the middle child to the father and awarding pendente lite custody of the other two children to the maternal grandparents.

During the two years after the entry of the ex parte pendente lite order, the parties filed a number of petitions and motions regarding child support and visitation issues. Four judges have presided over this case. As pointed out by the trial judge who entered the judgment made the basis of this appeal, it appears from the record that the parties reached agreements on the issues raised in their various petitions before hearings could be held. Since the entry of the March 26, 2007, ex parte custody order, the custody arrangement set forth in that order remained in place. After providing time for the parents to submit to drug tests and for a psychologist to examine the children and after a number of continuances requested by the attorneys for both parties and by the guardian ad litem appointed to represent the children, a trial was held on the issue of “permanent” custody on July 30, 2009.

The evidence adduced at the July 30, 2009, trial tended to show the following. The father testified that he sought a custody modification because, at the time he filed the petition in 2007, the mother was spending the night with a man who was a user and manufacturer of methamphetamine. The mother acknowledged that she had been in a relationship with the man, and she was aware he used and manufactured methamphetamine, but, she said, she did not use drugs or drink alcohol. The older children were upset over the mother’s relationship with the man, who was in jail at the time of the trial. The mother acknowledged that, while she was in that relationship, she had put her relationship with her boyfriend before the needs of her children. She said that, at the time, she did not believe that the relationship might cause her to lose custody of her children because, she said, she believed that the father was “trying to get back” at her. She also testified that, although she had continued the relationship after the trial court entered the ex parte pendente lite custody order on March 26, 2007, she never “stayed” with the man again. The mother testified that the relationship had ended more than a year before the 2009 trial.

At the time of the trial, the mother was engaged to a man she had known all of her life. She said that they had been dating for seven months. Her fiancé has a four-bedroom, two-bath house, large enough to accommodate all three children; she said that she did not want the children separated. At the time of the trial, the mother was living with the maternal grandparents. She said that she had moved in with them to be with her children, two of whom had been living with the maternal grandparents as a result of the 2007 ex parte order. The mother testified that she had a full-time job and could support all three children. She also said that she was back in school studying to earn a degree as a registered nurse.

The mother submitted to a drug test, the results of which were negative, but she did not submit to the hair-follicle test that the trial court requested. The mother testified that she could not afford the latter test but that she did submit to a urine drug test. The results of that test, included in the record, indicated that the mother was not using drugs of any kind.

The mother also did not take part in the psychologist’s examination of the children. She testified that she thought she was to make the children available for the psychologist, but she did not think that she was to be there. The order requiring the children to submit to the examinations states:

“[T]he court finds that it is in the best interest of the children that they be examined by a licensed psychologist or psychiatrist in order to determine them current emotional state; any underlying causes of distress; and to make recommendations to the court and the guardian ad litem concerning future handling of the children’s emotional needs.”

The father was ordered to pay the cost of the children’s sessions with the psychologist.

Similarly, the mother testified that she did not contact the guardian ad litem appointed on behalf of the children because, she said, she believed that the guardian ad litem was to contact the children. The mother said that she had not paid the guardian ad litem because, she said, she never received a bill.

The father was living with his father in the children’s paternal grandparents’ house at the time of trial. The father’s mother had died a month before the trial. The paternal grandparents’ house has three bedrooms: the paternal grandfather has one room, the father has one room, and the middle child has the last room. When the youngest child had visited with the father, he had slept with the father in his room or with the paternal grandparents in their room. The father testified that if he received custody of all three children, he would have to “work out” sleeping arrangements. He speculated that they would make use of “air mattresses, couches, whatever.”

The father testified that he had requested custody of only one of the children because it was too difficult for him to drive the oldest and youngest children to school. The oldest child was in high school in Gordo, and, at the time the father filed his petition, the youngest child was in school in Reform. The father lived in Greene County, more than 30 miles away from the children’s schools. At the time of the trial, however, the middle child and the youngest child attended the same school. The father said that, in addition to seeing the youngest child every other weekend, he also sees the youngest child when he takes the middle child to school or picks her up from school. The father testified that he and the oldest child, a daughter, had a strained relationship. He seldom saw the oldest child, although he did speak with her on the telephone approximately once every two weeks.

The middle child was in the fourth grade at the time of the trial. By all accounts, she was a good student while in the father’s custody. When the middle child was in the first grade, she lived with the mother. The father called the middle child’s first-grade teacher to testify that, while in the first grade, that child had been inattentive, had frequently daydreamed, and had “seemed to be just in her own little world.” Both the mother and the father met with the teacher and were involved in helping to work with the child. The teacher also testified that she recalled “something about maybe the power was cut off’ when the middle child was living with the mother; however, the teacher could not remember specifically where the power had been turned off, saying: “I don’t know that it was [the middle child’s] mother’s apartment or house. It may have been someone else’s.” The teacher noted that three years had passed since the incident.

The father conceded that he had not made any child-support payments in the eight months preceding the trial. The father testified that he was self-employed and that his income fluctuated between $16,000 and $30,000 annually. Evidence introduced at trial indicated that the father’s monthly income was $1,500 and that the mother’s monthly income was $2,393.60.

A psychologist who had met with the two oldest children in 2008 testified that, at that time, both were emotionally healthy, well adjusted children. The psychologist said that the oldest child appeared to be angry with the mother for being in a relationship with a man. At the time the psychologist met with the children, the mother would still have been in the relationship with the man who allegedly used and manufactured methamphetamine, whom she was no longer seeing at the time of the trial. Likewise, the psychologist said, he thought the oldest child had distanced herself from the father. The psychologist’s report indicated that the oldest child thought that the father’s affair with a “close friend of the family” had caused her parents’ divorce.

On January 21, 2010, the trial court entered an order finding that the father was a fit parent and that the mother was “unfit” for a number of reasons, including that the man with whom the mother had previously been cohabitating was a methamphetamine user and manufacturer who was in prison at the time of the trial. The mother had admitted that she had continued to cohabitate with the man even after the August 2006 contempt order was entered, saying that, at the time, she put that relationship before the needs of her children. The trial court further noted that, at the time of the trial, the mother was not “ready to acknowledge that the relationship with [the man had] threatened her custody of the children.”

As further grounds that the mother was “unfit,” the trial court stated that the mother had failed to participate when the psychologist had examined the children; that she had not submitted to a hair-follicle drug test; and that she had not contacted the children’s guardian ad litem although the guardian ad litem had sought her input.

Based upon its findings, the trial court awarded custody of the two younger children to the father and awarded custody of the oldest child to the maternal grandparents. The mother was awarded supervised visitation with the middle child and the youngest child and unsupervised visitation with the oldest child.

In addition to modifying custody, the trial court’s judgment also established child-support obligations, determined the father’s child-support arrearage, ordered the mother and the father to each pay half of the guardian ad litem’s fee, and denied all other relief the parties had requested. The mother appeals.

The mother contends that the trial court violated her right to due process when it entered the March 2007 ex parte custody order and an order extending the terms of that order, which was entered in April 2007. Both orders purported to make “temporary” custody awards. The ex parte “temporary” custody orders entered in this case were in the nature of pendente lite orders because they were “ ‘effective only during the pendency of the litigation ... and [were] ... replaced by the entry of a final judgment’ ” at the end of the litigation. Evans v. Evans, 978 So.2d 42, 48 (Ala.Civ.App.2007) (quoting T.J.H. v. S.N.F., 960 So.2d 669, 672 (Ala.Civ.App.2006)). The mother did not petition this court for a writ of mandamus to set aside the ex parte orders. See, e.g., Ex parte Russell, 911 So.2d 719 (Ala.Civ.App.2005) (this court issued a writ of mandamus ordering the trial court to vacate ex parte orders granting the father pendente lite custody and further ordering the trial court to hold an evidentiary hearing on the father’s motion for pendente lite custody). The litigation proceeded and, on July 30, 2009, a trial was held on the issue of custody modification. The mother fully participated in that trial, after which the trial court entered the judgment modifying custody. That judgment effectively replaced the ex parte custody orders.

“ ‘ “The general rule is, if pending an appeal, an event occurs which renders it impossible for the appellate court to grant any relief, the appeal may be dismissed. There are many instances in which such condition may arise.... The condition may ... arise from the act of the court a quo, that is to say, from some order or judgment in the case pending the appeal, which is made by the court, which renders the determination of the questions presented by the appeal unnecessary. Paris Electric Light [& Ry.] Co. v. Martin (Tex.Civ.App.[1895]) 31 S.W. 243; 2 Cent. Dig. Appeal and Error, § 71 et seq.” ’
“Siegelman v. Alabama Ass’n of Sch. Bds., 819 So.2d 568, 575-76 (Ala.2001) (quoting Caldwell v. Loveless, 17 Ala. App. 381, 382, 85 So. 307, 307-08 (1920)) (emphasis added in Siegelman).”

Medical Assurance Co. v. Anesthesiology & Pain Med. of Montgomery, P.C., 957 So.2d 459, 463 (Ala.2006).

In this case, the intervening trial on the issue of custody modification and the judgment replacing the ex parte custody orders render moot any issue regarding the propriety of the ex parte orders. Accordingly, this court will not consider whether the trial court erred in entering the ex parte orders. See Auburn Med. Ctr., Inc. v. East Alabama Health Care Auth., 908 So.2d 243, 245-46 (Ala.Civ.App.2003) (holding that a court will not decide a legal issue that is irrelevant to the outcome of case).

The mother contends that the trial court applied the improper standard of review in modifying the custody award set forth in the parties’ 2004 divorce judgment. Specifically, the mother asserts, there is no indication in the record or in the judgment that the trial court applied the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984).

The McLendon standard is as follows:

“A parent seeking to modify a custody judgment awarding primary physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon [, 455 So.2d 863 (Ala.1984) ]. Under that standard, the parent seeking to modify custody of a child must demonstrate that there has been a material change in circumstances, that the proposed change in custody will materially promote the child’s best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, supra.

Adams v. Adams, 21 So.3d 1247, 1252 (Ala.Civ.App.2009). We further note that “[a] pendente lite order awarding custody to a parent does not create a presumption in favor of the party who is awarded pen-dente lite custody.” T.J.H. v. S.N.F., 960 So.2d at 673.

In its judgment, the trial court modified custody based upon its finding that the mother was “unfit.” A finding that a parent is unfit is required in cases in which a nonparent seeks custody of a child. See Ex parte Terry, 494 So.2d 628, 632 (Ala.1986). Such a finding is not required in a custody dispute between parents. See McLendon, supra.

In his 2006 petition seeking a custody modification, the father asserted that the mother was in violation of a provision of a previous court order prohibiting the mother from cohabitating with a member of the opposite sex. At trial, the father testified that the reason he filed the petition in 2006 was because, at the time, the mother was cohabitating with a man known to be using and manufacturing methamphetamine.

Furthermore, the maternal grandparents, who ultimately were awarded custody of the oldest child, made clear to the trial court at the outset of the July 30, 2009, trial that they were not seeking custody of the children. The maternal grandmother told the trial court that she “thought we were here to get custody between [the father] and [the mother]” and that they were in court to be witnesses for the mother and to support her. The maternal grandparents specifically stated that they were not parties in the case, and, the maternal grandmother said, “[w]e’re not here trying to petition custody.” In the judgment the trial court noted that, although the maternal grandparents had filed a “Petition for Ex Parte Relief and Modification of Final Decree” on August 28, 2008, the court had clarified their status at the outset of the July 30, 2009, trial. The judgment reflected that the maternal grandparents had said that they were only witnesses at the trial and that the attorney who had filed the August 28, 2008, petition on behalf of the maternal grandparents had appeared at the beginning of the trial “to make clear that the [maternal grandparents] were not parties and [that] he did not represent them in this matter.”

Based upon the record, we conclude that this case involves a custody dispute between the father and the mother. Therefore, the McLendon standard was the correct standard to be applied in determining whether to modify custody. However, after a review of the judgment and the record, we find no indication that the trial court applied the McLendon standard. The trial court’s judgment modifying custody is based upon its finding that the mother is “unfit.”

We recognize that the McLen-don standard is less stringent than the parental-unfitness standard. This court has held that when a judgment awarding a custody modification is entered based upon application of a more stringent standard than should have been applied, the judgment is due to be affirmed on the ground that the trial court’s error in applying the more stringent standard was harmless. Rehfeld v. Roth, 885 So.2d 791, 794 (Ala.Civ.App.2004), citing Lawley v. Byrd, 689 So.2d 191 (Ala.Civ.App.1997), and I.M. v. J.P.F., 668 So.2d 843 (Ala.Civ.App.1995). In this case, however, the mother also asserts that the evidence does not support the trial court’s judgment modifying custody on the basis that she was unfit. In fact, she argues, the evidence is insufficient to meet even the McLendon standard.

‘When this Court reviews a trial court’s child-custody determination that was based upon evidence presented ore tenus, we presume the trial court’s decision is correct: “ ‘A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....’” Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess them demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. “In child custody cases especially, the perception of an attentive trial judge is of great importance.” Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981).’
“Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).”

Ex parte Blackstock, 47 So.3d 801, 805 (Ala.2009). However, when a trial court improperly applies the law to the facts, the trial court’s judgment is not entitled to a presumption of correctness on appeal. Laminack v. Laminack, 675 So.2d 479, 481 (Ala.Civ.App.1996).

The trial court’s grounds for finding the mother “unfit” were that, at one time, she had cohabitated with a drug user and manufacturer, that she had failed to submit to a hair-follicle drug test, that she had failed to participate in the children’s examinations by the psychologist, and that she had failed to contact the guardian ad litem.

In B.S.L. v. S.E., 875 So.2d 1215 (Ala.Civ.App.2003), as in this case, a relatively long time passed between the filing of the petition for a custody modification and the entry of the final judgment. In B.S.L., this court reversed a judgment modifying custody based on the mother’s history of drug and alcohol abuse when the mother had voluntarily sought treatment and had abstained from abusing drugs and alcohol for almost two years as of the date of trial. Id. at 1224.

In A.L. v. S.J., 827 So.2d 828 (Ala.Civ.App.2002), the father sought custody of the parties’ 13-month-old child, and the child’s paternal grandmother, who also sought custody of the child, moved to intervene. After a trial, the trial court awarded the mother and the father joint legal custody of the child but awarded primary physical custody of the child to the paternal grandmother. Id. at 830. Evidence in that case indicated that the 19-year-old mother, among other things, had dated D.W., a 17-year-old who admitted that he had used illegal drugs and had consumed alcohol in the past; he also acknowledged that he had overdosed on drugs in October 2000. At one point during the litigation regarding custody of the child, the trial court had ordered that the child not be allowed in D.W.’s presence and had awarded the mother temporary custody of the child on the condition that she avoid contact with D.W. However, the record in that case included evidence indicating that the mother had continued to see D.W. and that D.W. had even spent the night at the mother’s apartment in violation of the trial court’s order. There was no evidence, however, that the mother had placed the child in any situation that was harmful or dangerous. Id. at 832-33.

At the time of the trial in A.L., the mother was no longer dating D.W. This court reversed the judgment awarding primary physical custody of the child to the paternal grandmother, concluding that, although the evidence indicated that the mother had exhibited poor judgment, it fell short of establishing, by clear and convincing evidence, that the mother was an “ ‘ “unfit or improper person to be entrusted with the care and upbringing of the child.” ’ ” Id. at 834 (quoting Ex parte Terry, 494 So.2d at 632, quoting in turn Ex parte Mathews, 428 So.2d 58, 59 (Ala.1983)).

In this case, the mother’s relationship that the father testified was the basis for his request for a custody modification and that the trial court used as the primary basis for finding that the mother was “unfit” had ended more than a year before the trial of this case. At the time of the trial, the mother was engaged to a man she had known all of her life. There was no evidence indicating that the mother’s fiancé had engaged in improper or illegal conduct. There was no evidence indicating that the mother was using illegal drugs at the time of the trial. The mother’s fiancé had already purchased a house large enough to accommodate all three of the mother’s children. The mother held a full-time job and had returned to school to become a registered nurse. The psychologist who had examined the two older children found them both to be healthy and well adjusted. It is true that the older children were upset with the mother’s relationship at the root of this case; however, the psychologist also found that the older child was upset with the father, too, because of her belief that his affair with a family friend had caused the breakup of the parties’ marriage.

As was the case with the mother in A.L., the evidence in this case indicated that the mother had exercised poor judgment in the past. At the time the father’s petition was filed, the mother’s circumstances may well have led one to conclude that she was unfit. However, like the mother in B.S.L., her circumstances at the time of the trial, which was held more than two years after the father filed his petition, had changed for the better. The mother provided explanations regarding the trial court’s concerns that the mother had failed to take a hair-follicle drug test, had failed to participate in the psychologist’s examination of the children, and had failed to contact the guardian ad litem. Even if the trial court did not accept the mother’s explanations, however, we conclude that the mother’s conduct did not make her an “ ‘unfit or improper person to be entrusted with the care and upbringing of the child’ ” as required by Ex parte Terry, 494 So.2d at 632.

After reviewing the record in this case, we conclude that there is insufficient evidence to support a finding that the mother was unfit, and, thus, the judgment finding the mother to be unfit is plainly and palpably wrong. Because there is insufficient evidence to support the finding that the mother was unfit, the trial court’s award of custody of the oldest child to the maternal grandparents, with whom the mother was living so she could be with the oldest and youngest child, was improper and must be reversed. See Ex parte Terry, 494 So.2d at 632. Our holding precludes the need to address the propriety of awarding custody of the oldest child to the maternal grandparents on the basis that they were not parties in this matter.

Furthermore, because the evidence does not support the trial court’s finding that the mother was unfit, we cannot say that application of the incorrect, albeit more stringent, standard of determining whether to modify custody constituted harmless error. There is nothing in the record or in the judgment to suggest that the trial court considered whether there had been a material change in circumstances, that the proposed change in custody would materially promote the children’s best interests, and that the benefit brought about by the modification more than offset the inherently disruptive effect caused by uprooting the children. Therefore, we also reverse the trial court’s judgment modifying custody of the two youngest children. We remand this cause for the trial court to consider the evidence in light of the McLendon standard to determine whether a change of custody of the parties’ children is warranted.

Because we reverse the judgment of the trial court as to the modification of custody of all three children, we pretermit discussion of the other issues the mother raises on appeal.

REVERSED AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

MOORE, J., concurs in part and dissents in part, with writing.

MOORE, Judge,

concurring in part and dissenting in part.

When a circuit court awards custody of a child to a grandparent over the objection of a natural parent, it may do so only based upon an express finding that the parent is unfit to exercise custody of the child. Ex parte Terry, 494 So.2d 628, 632 (Ala.1986). In its final judgment, the trial court awarded custody of the parties’ oldest child to the children’s maternal grandparents after they had exercised pendente lite custody of that child for over two years. Hence, the trial court’s finding that the mother was unfit was a necessary part of its judgment, regardless of the fact that the maternal grandparents testified that they were not petitioning for custody. In other words, the ultimate disposition of the custody of the oldest child made this more than “a custody dispute between the father and the mother,” as the main opinion concludes. 61 So.3d at 318.

That being said, I agree with the main opinion’s conclusion that, at the time of the trial, the mother was not an unfit parent. I note that the unfitness of a parent sufficient to deprive that parent of his or her custody of a child must be proven by clear and convincing evidence. Terry, supra. That evidence must show that, at the time of the custody disposition, the parent lacks the ability or willingness to properly care for the child. See J.W. v. T.D., 58 So.3d 782, 793 (Ala.Civ.App.2010) (Moore, J., dissenting) (noting that a finding of unfitness equates to a finding that a parent is unable or unwilling to discharge his or her parental responsibilities to and for the child); and Stocks v. Stocks, 49 So.3d 1220, 1236 (Ala.Civ.App.2010) (Moore, J., concurring in part and dissenting in part) (noting that the unfitness of a parent must be adjudged as of the time of the custodial disposition) (citing Ex parte Phillips, 266 Ala. 198, 200, 95 So.2d 77, 79 (1957); Edwards v. Sessions, 254 Ala. 522, 524, 48 So.2d 771, 772 (1950); and Borsdorf v. Mills, 49 Ala.App. 658, 661-62, 275 So.2d 338, 340-41 (Civ.App.1973)). Hence, this court will affirm a judgment finding a parent unfit only if the evidence in the record reasonably could have clearly convinced the trial court that that parent was currently unable or unwilling to properly parent the children. Stocks, 49 So.3d at 1236 (Moore, J., concurring in part and dissenting in part). I agree with the main opinion that the evidence proved that the mother may have once been unfit — during her relationship with her drug-abusing paramour — but that she had since rehabilitated so that she was no longer unable or unwilling to discharge her parental responsibilities to and for the children. Accordingly, I agree that that part of the judgment awarding custody of the oldest child to the maternal grandparents is due to be reversed.

The mother had obtained custody of the two younger children by virtue of a prior, valid custody judgment, which custody she had not voluntarily forfeited. Thus, the trial court could have awarded the father custody of the younger children only based on the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), which the main opinion correctly summarizes. 61 So.3d at 320. Although a finding of unfitness of the custodial parent is not required in order for a noncustodial parent to meet the McLendon standard, a noncustodial parent can prove that the custodial parent has, since the last custody judgment, become unfit as a means of meeting the first prong of the McLendon standard, i.e., that a material change of circumstances has occurred. See, e.g., H.J.B. v. P.W., 628 So.2d 753, 754 (Ala.Civ.App.1993). The burden remains, however, on the noncustodial parent to prove the remaining elements of the McLendon standard.

In finding the mother unfit, the trial court could have, and probably did, determine that a change of circumstances had occurred since the entry of the last custody judgment. However, that change of circumstances had become immaterial by the time of trial because the mother had rehabilitated herself so that her past conduct was no longer determinative of her current fitness as a parent. At the time of the trial, the mother showed virtually the same capacity to parent the children as she had displayed at the time of the entry of the last custody judgment, or the father at least failed to show any material change in her parenting ability that persisted at the time of trial. Hence, the trial court could not have relied on the mother’s unfitness to satisfy the first prong of the McLendon standard.

Our caselaw holds that when a judgment omits express findings of fact that are not required by law, this court will ordinarily assume that the trial court implicitly made those findings necessary to support its judgment. See, e.g., McCormick v. Ethridge, 15 So.3d 524, 529 (Ala.Civ.App.2008). In this case, the trial court made findings of fact. Those findings, however, do not support its judgment. I agree with the main opinion that the trial court did not find any additional facts that would have justified a change of custody under the McLendon standard. See Ramsey v. Ramsey, 995 So.2d 881, 891-93 (Ala.Civ.App.2008) (Moore, J., dissenting) (arguing that, when a trial court voluntarily makes specific findings of fact to support its judgment, this court must presume the trial court relied on only those findings of fact when entering that judgment). I further conclude that the record does not contain any evidence that would support a change of custody under the McLendon standard.

Based on the foregoing analysis, I agree that the judgment should be reversed, but I see no reason to remand the case. Without evidence of a material change of circumstances existing at the time of trial, the trial court would have no discretion to modify custody at all. In my opinion, a reconsideration of the evidence in light of the McLendon standard could produce only one legally valid result — a denial of the father’s petition for modification of custody. Hence, I believe this court should simply reverse the judgment and render a judgment for the mother. Because the main opinion remands for the trial court to reconsider the case, I respectfully dissent.

      . The record includes the results of urine drug tests administered to the mother and the father. The results of both tests were negative for the presence of illegal drugs. There is no evidence in the record indicating that either the mother or the father submitted to a hair-follicle drug test.

      . The “Petition for Ex Parte Relief and Modification of Final Decree’’ to which the trial court referred is not included in the record on appeal.

      . We recognize that, in a custody dispute between a parent and a nonparent, to award custody to the nonparent a trial court must find, by clear and convincing evidence, that a parent is unfit. Thus, had the maternal grandparents been seeking custody of any of the children, to award custody to the maternal grandparents, the trial court would have had to find that the mother was unfit.

      . I also note that, at the time of the trial, the mother was residing with the maternal grandparents. By awarding custody of the oldest child to the maternal grandparents, the trial court placed the child in the home in which the mother was residing and, presumably, where the mother exercised authority over the child. Therefore, the legal custody arrangement created by the judgment would have, in all likelihood, resulted in the mother exercising de facto custody of the child.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jeffrey Scott GIBSON v. STATE of Alabama. James Hezzie Sparks v. State of Alabama. Johnny Dale Lane v. State of Alabama. David Alan Hampton v. State of Alabama. Tony Ellis v. State of Alabama.
    2090825, 2090826, 2090827, 2090829, and 2090830.
    Court of Civil Appeals of Alabama.
    Oct. 29, 2010.

      John V. Martine, Winfield, for appellants.
    Sharon E. Ficquette, asst. atty. gen., and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for ap-pellee.
   PER CURIAM.

Jeffrey Scott Gibson, James Hezzie Sparks, Johnny D. Lane, David Alan Hampton, and Tony Ellis (hereinafter collectively referred to as “the petitioners”) are each incarcerated in the Winston County jail on contempt orders related to each petitioner’s failure to pay child support. Judge Michael Newell, acting as a juvenile court judge for the Winston Juvenile Court, entered judgments finding Gibson, Lane, and Ellis in contempt for failure to pay child support as ordered by the court, and he ordered each arrested. As a result, Gibson has been incarcerated since July 24, 2009, Lane has been incarcerated since October 21, 2009, and Ellis has been incarcerated since August 17, 2009. Judge Newell also presided over domestic-relations actions in the Winston Circuit Court (“the circuit court”) in which he found Sparks and Hampton in contempt for their failure to pay court-ordered child support, and he ordered that those two petitioners be arrested. Sparks has been incarcerated since late May 2009, and Hampton has been incarcerated since November 23, 2009. None of the petitioners timely appealed the contempt orders pursuant to which they are incarcerated.

The record indicates that, in December 2009, Judge Newell conducted a hearing for each petitioner and offered to release each upon the payment of 25% of the amount of the petitioner’s accrued child-support arrearage. There is no written order documenting those conditions for release.

On April 12, 2010, the petitioners each initiated new actions by filing in the circuit court a petition for a writ of habeas corpus seeking their release from incarceration. In those petitions for habeas relief, each petitioner alleged that he was unable to pay the amount required to secure his freedom.

The habeas petitions were assigned to Judge John Bentley, who, on April 16, 2010, conducted a joint hearing on all five of the habeas petitions. At the hearing, Judge Bentley heard only arguments of counsel but did not take ore tenus evidence. Each petitioner argued that he lacked the ability to comply with the terms for his release, that continued incarceration did not have the effect of coercing compliance because of his alleged inability to comply, and that the continued incarceration, under the facts, violated his due-process rights.

Following the hearing, on April 23, 2010, the petitioners each filed a purported Rule 59, Ala. R. Civ. P., motion to alter, amend, or vacate a judgment, although Judge Bentley had not yet issued judgments ruling on the habeas petitions. On May 5, 2010, Judge Bentley entered judgments dismissing all five actions for a purported lack of jurisdiction because the habeas petitions had not been considered by Judge Newell. One of the dismissal orders stated: “Court has no jurisdiction. Judge Newell sits as circuit judge in these matters pursuant to Admin. Order & statute.” Each petitioner appealed; this court has consolidated the appeals.

In their appeals of the denial of their habeas petitions, the petitioners fail to address the circuit court’s finding that this matter should have been addressed to Judge Newell. Rather, the petitioners argue only that the “circuit court” has jurisdiction over habeas petitions arising in civil actions. Under § 15-21-6, Ala.Code 1975, the circuit court in the county in which the petitioners are incarcerated has jurisdiction to consider the habeas petitions; that section requires that the petition be addressed to a circuit judge. Section 15-21-6 specifies:

“(a) When the person is confined in a county jail or any other place on a charge of felony or under a commitment or an indictment for felony, the petition for a writ of habeas corpus must be addressed to the nearest circuit court judge.
“(b) When the person is confined in the penitentiary or under a sentence, judgment or order of the supreme court or the circuit court, other than an indictment for felony, the petition must be addressed to the nearest circuit court judge.
“(c) In all other cases, it may be addressed to any one of them, and when the person is confined in any other place than the county jail or the penitentiary and on any other than a criminal charge, it may be addressed to any circuit court judge.”

(Emphasis added.)

All circuit courts have the authority to issue a writ of habeas corpus. Ex parte Culbreth, 966 So.2d 910, 912 (Ala.2006). In Ex parte Culbreth, supra, our supreme court explained that § 15-21-6 implicates the issue of proper venue, rather than jurisdiction. “Venue ... addresses ‘[t]he county or other territory over which a trial court has jurisdiction.’ Black’s Law Dictionary 1591 (8th ed.2004).” Ex parte Culbreth, 966 So.2d at 912. In that case, because the record failed to demonstrate that the State had properly objected on the basis of venue, our supreme court held that the trial court had erred in dismissing the petitioner’s habeas petition. Ex parte Culbreth, supra.

Before this court, the State argues that the circuit court lacked jurisdiction to consider the habeas petitions based on § 15-21-23, Ala.Code 1975, which provides:

“On the return of a writ of habeas corpus, no court or judge has authority to inquire into the regularity or justice of any order, judgment, decree or process of any court legally constituted, nor into the justice or propriety of any commitment for contempt made by a court, officer or body according to law and charged in such commitment.”

The State contends that the habeas petitions must fail because, it says, the circuit court had jurisdiction over the contempt orders pursuant to which the petitioners are incarcerated. In explaining § 15-21-23, the Court of Criminal Appeals has stated:

“A petition for writ of habeas corpus furnishes no basis for relief from imprisonment or detention if and when the petition or application clearly discloses as the cause of the petitioner’s detention or imprisonment, that the court rendering judgment of conviction and sentence was acting within its jurisdiction in rendering such judgment.”

Boykin v. State, 432 So.2d 17, 19 (Ala.Crim.App.1983).

However, the petitioners in this case do not attack the contempt orders themselves. Rather, they contend in their habeas petitions that, in setting the conditions of their release on the contempt orders, Judge Newell exceeded his permissible jurisdiction by issuing the orders requiring their continued, allegedly unlawful incarceration. “ ‘ “[T]he sole function of habeas corpus is to provide relief from unlawful imprisonment or custody.” ’ ” Looney v. State, 881 So.2d 1061, 1063 (Ala.Crim.App.2002) (quoting Taylor v. State, 455 So.2d 270, 271 (Ala.Crim.App.1984), quoting in turn Cook v. Hanberry, 592 F.2d 248, 249 (5th Cir.1979)).

We conclude that the petitioners’ habeas petitions properly invoke the jurisdiction of the circuit court, that venue under § 15-21-6 is proper in the circuit court, and that Judge Bentley, as a circuit court judge, may properly consider the habeas petitions. Accordingly, we must conclude that Judge Bentley erred in dismissing the ha-beas petitions. We reverse the judgments of dismissal and remand the cause for Judge Bentley to conduct an evidentiary hearing on the habeas petitions.

REVERSED AND REMANDED.

All the judges concur.

      . A valid postjudgment motion filed pursuant to Rule 59, Ala. R. Civ. P., may be taken only in reference to a final judgment.

      . Each of the judgments denying the writs for habeas relief is handwritten on the purported postjudgment motion filed in each action. The judgment in case no. CV-10-38 pertaining to Gibson is quoted in the opinion. The other dismissal judgments each deny the petitions by referencing the order entered in the action pertaining to Gibson.


text:
    C.L.B. v. D.L.O.
    2090737.
    Court of Civil Appeals of Alabama.
    Oct. 29, 2010.

      Tiffin M. Taylor, Huntsville, for appellant.
    Denise M. Learned, Alisha D. Franklin, and Stacie B. Irwin, Addison, for appellee.
   PER CURIAM.

C.L.B. (“the mother”) appeals from a judgment awarding D.L.O. (“the father”) and her joint physical custody of their child. Pursuant to the judgment, the child is to spend alternate weeks with each parent.

This is the second time this cause has come before this court. In the first appeal, C.L.B. v. D.L.O., 42 So.3d 1246 (Ala.Civ.App.2010), this court considered the propriety of the judgment of the Winston Juvenile Court entered on June 3, 2009. In that judgment, the juvenile court found that the child was dependent because he was in a condition or surroundings that endangered the child’s morals, health, or general welfare. Based upon its findings, the court modified primary custody of the child from the mother to the father. We determined that the finding of dependency was not supported by clear and convincing evidence and that, because the child was not dependent, the juvenile court had applied the incorrect standard in determining whether a custody modification was warranted. Id. at 1249-50. Accordingly, we reversed the judgment and remanded the cause for the juvenile court to apply the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), to determine whether to modify custody. Id.

On February 17, 2010, after this court had remanded the action, the father filed a motion for “temporary” (properly, penden-te lite) custody of the child pending the juvenile court’s new custody determination. The next day, February 18, 2010, the mother filed her opposition to the father’s motion for pendente lite custody. The case-action summary indicates that the juvenile court entered a “temporary order” on February 18, 2010, awarding the father temporary custody .of the child until the juvenile court could make a new custody determination. We note that, although it was entered on February 18, 2010, the “temporary order” was dated February 17, 2010, before the mother’s opposition to the father’s motion had been filed. No appeal was taken from the “temporary order.”

On April 29, 2010, the juvenile court entered an “amended final order” (“the amended judgment”) based on the evidence presented at the May 7, 2009, trial— the same evidence it had relied on in entering the judgment of June 3, 2009. In that amended judgment, the juvenile court set forth new findings of fact. It stated that “[t]he testimony and evidence presented [at the May 7, 2009, trial] was such as to convince this court that a change in custody will materially promote the minor child’s best interest and that the benefit(s) derived from the change in custody will more than offset any disruptive effect caused by said change in custody.” The juvenile court then awarded the parties joint physical custody of the child, “with each party exercising visitation every other week for a period of seven (7) days.” The juvenile court instructed the parties to “exchange the minor child every Friday at 6:00 p.m.,” but it also granted the mother visitation every other weekend from Friday evening until Sunday evening. It appears from the amended judgment that the juvenile court intended the parties to each have custody of the child on alternating weeks, beginning on Friday evening. The amended judgment further ordered that the child could not be withdrawn from the Haleyville school system without the express written consent of both parties. At the time of the first appeal, the child had been enrolled in a private religious school in Huntsville.

The amended judgment also included the following statement:

“It is to be noted that while the subject of the [mother’s] religious beliefs was brought up during the trial of the above-styled cause the court has not decided this case based upon the religious beliefs of either of the parties to this action. While it is true that there is considerable difference in religious beliefs between the parties, this court does not find it appropriate, legally or otherwise, to base its decision on whether or not the court agrees or disagrees with either of the party’s religious beliefs.”

The mother now appeals from the amended judgment. She contends that the juvenile court erred in determining that a change in custody would materially promote the child’s best interest. She does not challenge the provision in the amended judgment requiring the child to remain enrolled in the Haleyville school system without the consent of both parties.

As previously mentioned, the juvenile court based its decision on ore tenus evidence presented at the May 7, 2009, trial of this case. The standard of appellate review of a child-custody judgment based on ore tenus evidence is deferential.

“ ‘When evidence in a child-custody case has been presented ore tenus to the trial court, that court’s findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing.’ ”

Burgett v. Burgett, 995 So.2d 907, 912 (Ala.Civ.App.2008) (quoting Ex parte Bryowsky, 676 So.2d 1822, 1324 (Ala.1996)). An appellate court will not reverse a trial court’s judgment as to custody in such a case unless the evidence fails to support the trial court’s custody determination so that the appellate court must conclude that that determination is “ ‘plainly and palpably wrong.’ ” Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1998)).

“ ‘[E]ven under the ore tenus rule, “[w]here the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.” ’ B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala.Civ.App.1999) (quoting Jacoby v. Bell, 370 So.2d 278, 280 (Ala.1979)).”

Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007).

In C.L.B., we set forth the following facts relevant to our determination of whether the evidence supported the juvenile court’s finding that the child was dependent:

“The mother and the father had the child out of wedlock. When the child was born, the mother was 16 years old and the father was 20 years old. On August 5, 2004, the juvenile court, incorporating an agreement of the parties, entered a judgment establishing the father’s paternity and awarding custody of the child to the mother. Pursuant to the parties’ agreement, the judgment granted visitation to the father and ordered him to pay child support.
“After the birth of the child, the mother went on to graduate from high school and college. The mother moved to Huntsville, without any objection from the father, and she is now a teacher in the Huntsville public schools. The record indicates that the parties had an amicable relationship, and they appeared to work well together in raising the child.
“In 2008, however, a dispute arose between the parties regarding the mother’s change in religious beliefs. The mother enrolled the child in a private school in Huntsville affiliated with the mother’s religious beliefs. The father filed a petition with the juvenile court seeking to modify custody of the child....
“The father testified that, until the parties’ religious differences arose, T thought that [the mother] was one of the best mothers that I had ever met.’ Later, he testified that, although he did not believe that the mother had ‘made the right decision on the religion,’ he believed that she was ‘probably the best mom that I have ever met, as far as getting a bruise or cut on you, probably the best.’
“The juvenile court found that the child was ‘fearful’ of the mother’s husband. That finding is also not supported by the evidence. There was testimony indicating that the child was reluctant to talk about the mother’s husband in front of the father, but there was no evidence indicating that the child was afraid of the mother’s husband. The father testified that he did not believe that the mother would allow the child to be physically harmed. He also said that the mother’s new husband, who shares the mother’s religious beliefs, is ‘super nice’ and that he did not believe that the mother’s husband was harming the child.
“The juvenile court found that the mother’s move to Huntsville had had a negative impact on the child and that it had separated the child from his extended family. The record shows that the father did not object to the mother’s move to Huntsville. In fact, he stated that he understood that the mother had better job opportunities in Huntsville than in Winston County and that he was also interviewing for jobs outside of Winston County. The evidence was undisputed that the mother had invited her parents to visit in Huntsville, but, because of her religious beliefs, they had refused to visit her. The evidence also was undisputed that the child visited with both his paternal and his maternal grandparents every other weekend when he was at his father’s house for visitation.
“In its findings, the juvenile court stated that the mother had lived with her new husband for approximately ten months before they married. The evidence supported that finding. However, the juvenile court did not mention the undisputed evidence that, at the time of the hearing, the father was living with his girlfriend and her child.
“The evidence indicated that the child was doing well in school and that he was healthy, happy, and well-adjusted. There was no contention that the child was anything but well-cared for while in the mother’s custody. The father acknowledged that his only complaints against the mother were her religious beliefs and the fact that she had enrolled the child in the school affiliated with those beliefs. The father said that he wanted the child raised with the same religious beliefs with which he had been raised. The father said that he did not attend church more than a few times a year.”

C.L.B., 42 So.3d at 1247-49.

Because in this appeal we are reviewing whether the evidence is sufficient to support a finding that a change in custody was warranted under the standard set forth in Ex parte McLendon, we include the following additional facts adduced from the evidence.

As we stated in C.L.B., when the mother and the child moved to Huntsville, the mother enrolled the child in a school affiliated with her new religion. The child began first grade at the new school, but shortly after the school year began the child’s teacher contacted the mother with her concerns that the child was not yet ready for first grade. The child’s teacher told the mother that the child was frustrated because he was not keeping up with the other children and recommended that the child repeat kindergarten. The mother said that, in addition to talking with the child’s first-grade teacher, she consulted with the child’s kindergarten teacher and then made the decision to have the child repeat kindergarten.

The father testified that he did not agree with the mother’s decision to hold the child back a year or with her choice of school for the child. He was concerned that the child was being instructed in the mother’s religion. The father believed that the child should be enrolled in public school. The mother was aware of the father’s concerns, but, she testified, she believed the child would receive a higher quality of education at the school in which she had enrolled him. She said that the student-to-teaeher ratio was approximately ten to one at the child’s school and that the teachers were able to spend more time with each child than teachers in the public schools, where she taught. The child’s first-grade teacher testified that she had taught in various school systems for 20 years. She said that, in her opinion, the curriculum at the child’s school provided students with a higher quality education than students in public schools received. She testified that the results of their students’ standardized tests supported her opinion.

The father acknowledged that the child seemed well adjusted and was “having a great time” at school. The father had visited the school once, and he said that he did not see anyone praying. The father presented no evidence regarding the education the child was receiving or any evidence indicating that the quality of education at the child’s school was lower than the quality of education the child would receive at a public school.

The mother testified that the child was not forced to take part in her religious activities. She said that, with the exception of certain minor food restrictions, the child’s day-to-day environment was the same as before the mother had changed religions. He still played with children in the neighborhood, he dressed like any other boy, his school uniform consisted of navy-blue pants and a white polo shirt, and, just as before the mother changed religions, he was not allowed to watch movies containing nudity or violence.

The father testified that he did not believe the child was being harmed in any way at home or at school, adding that the mother would not allow that. He also said that the mother had never put anything above the child’s welfare. He was worried, however, that the child would face “opposition” in life if he followed the mother’s religion.

The custody-modification standard set forth in Ex parte McLendon

“requires the parent seeking a custody change to demonstrate [ (1) ] that a material change in circumstances has occurred since the previous judgment, [ (2) ] that the child’s best interests will be materially promoted by a change of custody, and [ (3) ] that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody.”

Dean v. Dean, 998 So.2d 1060, 1065 (Ala.Civ.App.2008).

The majority of the testimony at trial was about the mother’s change in religions. The evidence indicated that most of the parties’ family members disagreed with that change and with the child’s exposure to the mother’s religion at school. Otherwise, there was no assertion of a material change in circumstances warranting a custody modification. The father testified that he had not opposed the mother and child’s move to Huntsville. In fact, he said that he had interviewed for a job in Huntsville. The mother had completed college and was working as a teacher in Huntsville. At the time of the trial, the mother was married; the father was living with his girlfriend. The father testified that the mother had never interfered with his visitation with the child. Although the child’s maternal grandparents had refused to visit the mother’s house in Huntsville after the mother converted to a new religion, the child saw them every other weekend when he was with the father. The evidence indicated that the school in which the mother had enrolled the child was providing the child with a high-quality education.

In Clift v. Clift, 346 So.2d 429 (Ala.Civ.App.1977), this court discussed the role a parent’s religious beliefs plays in a court’s determination of child custody. In Clift, this court stated:

66 A.L.R.2d 1410,1413-14, states:
“ ‘[T]he view taken in the great majority of the decisions which have touched upon the matter seems to be that while the courts in a child custody proceeding cannot pass upon the comparative merits of various religions and controlling effect must be given to the temporal welfare of the child, religious questions may well be bound up in the issue of temporal welfare and, if so, may properly be considered by the court.’
“Similarly, it has been said:
“ ‘Religion may be an element in the award of custody of infants insofar as it remains a secondary factor to be considered along with all other circumstances weighed to promote the child’s best interest and general welfare; in no case may religion be the sole basis upon which a parent or other person is to be deprived of custody.’ (Religion — A Factor In Awarding Custody Of Infants, 31 S. Cal. L.Rev. 313, 319 (1958).)
“We deem this to be the applicable statement of the law.
“The Constitution guarantees that citizens of the United States shall be free to pursue the religious beliefs of their choice. Consonant with this First Amendment right, courts have repeatedly declared that religious beliefs alone shall not constitute the sole determinant in child custody awards. Mollish v. Mollish, Tenn.App., 494 S.W.2d 145 (1972); Sinclair v. Sinclair, 204 Kan. 240, 461 P.2d 750 (1969); Quiner v. Quiner, Cal.App., 59 Cal.Rptr. 503 (1967); Welker v. Welker, 24 Wis.2d 570, 129 N.W.2d 134 (1964); Frantzen v. Frantzen, Tex.Civ.App., 349 S.W.2d 765 (1961); Salvaggio v. Barnett, Tex.Civ.App., 248 S.W.2d 244 (1952), cert. denied, 344 U.S. 879, 73 S.Ct. 176, 97 L.Ed. 681 (1952); Jackson v. Jackson, 181 Kan. 1, 309 P.2d 705 (1957); Smith v. Smith, 90 Ariz. 190, 367 P.2d 230 (1961); Cory v. Cory, 70 Cal.App.2d 563, 161 P.2d 385 (1945); Stone v. Stone, 16 Wash.2d 315, 133 P.2d 526 (1943); Reynolds v. Rayborn, Tex.Civ.App., 116 S.W.2d 836 (1938).
“However, that one’s religious beliefs may not serve as the sole consideration in a child custody proceeding does not necessarily preclude exploration into those beliefs. In this state, as in other jurisdictions, the ultimate consideration in determining the proper custody of the child is what is in his best interests. Strickland v. Strickland, 285 Ala. 693, 235 So.2d 833 (1970); Williams v. Williams, 54 Ala.App. 703, 312 So.2d 396 (1975). Religious beliefs are as diverse as the individuals who comprise the citizenry of this country. Unfortunately, some of these beliefs embrace philosophies which, contrary to being in the best interests of the child, might actually imperil his physical or mental health. Albeit courts are forbidden from weighing the merits of the religious tenets of the various faiths, they nevertheless are not precluded from inquiring into the beliefs of the parties who are seeking custody of the child in order to insure that such beliefs do not endanger the child.
“ ‘When custody of a child is in issue, the court has a narrow scope of inquiry regarding the religious concepts of the parents: Does the prospective custodian hold views which might reasonably be considered dangerous to the child’s health or morals? Thus a court would be warranted in denying custody to a parent whose religious notions would prevent such child’s receiving vaccinations or blood transfusions.’ (Welker; supra, 129 N.W.2d at 138).
“W[ere] the court prohibited from hearing all testimony regarding religious beliefs, it would never learn of any religious ideas which might reasonably be construed as inimical to the child. We hold that questions concerning religious convictions, when reasonably related to the determination of whether the prospective custodian’s convictions might result in physical or mental harm to the child, are proper considerations for the trial court in a child custody proceeding.”

Clift, 346 So.2d at 434-35; see also Ex parte Hilley, 405 So.2d 708 (Ala.1981).

In this case, the only evidence tending to show that the mother’s religious beliefs might cause harm to the child is the father’s testimony that he believes the child may face “opposition” if he follows the mother’s religion. There was no additional evidence presented to support the father’s assertion.

After reviewing the record, even giving proper deference to the juvenile court’s judgment, we cannot conclude that the father met the heavy burden imposed by Ex parte McLendon. The father did not provide evidence demonstrating that the child’s best interests would be materially promoted by a change of custody or that the benefits of such a change would more than offset the inherently disruptive effect resulting from the change.

For the reasons set forth above, we conclude that the juvenile court’s amended judgment modifying custody is plainly and palpably wrong. Therefore, the amended judgment is reversed, and the cause is remanded for the juvenile court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN and THOMAS, JJ., concur.

BRYAN and MOORE, JJ., concur in the result, without writings.

      . In the mother's response to the father’s motion for pendente lite custody, she stated that she had tendered her resignation from her teaching position in Huntsville and that she intended to remain in Haleyville at least through the 2009-2010 school year. She also stated that the father had taken a job in Huntsville.