Local Firm for Family Law

Supreme Court Overturns Bad Precedent in Ex Parte C.D. – March 27.2026

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On March 27, 2026, in the case of Ex Parte C.D., the Supreme Court of Alabama took the rare, but necessary step of overruling prior precedent. The context of the opinion comes out of milieu of Ex parte Terry:

If no exception applies, the presumptive parental right “‘can be overcome only by a finding … 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. ‘ ” Ex parte Terry, 494 So. 2d at 632 (quoting Ex parte Mathews, 428 So. 2d 58, 59 (Ala. 1983)) (emphasis omitted). However, as the Court of Civil Appeals noted in this case, that if one of the exceptions to the parental presumption is established,

“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.”

The unanimous Supreme Court decision explained that “[t]he source of contention in this case concerns the time frame that the juvenile court considered in evaluating whether the father had forfeited his presumptive right to custody.”

Prior case law had determined that

“[A]n 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.

The Court of Civil Appeals, in a special concurence by Presiding Judge Moore, “urged the Supreme Court to overrule Ex parte D.J. and Ex parte G.C.; all the other judges on that court joined the special concurrence.”
The Supreme Court does not overturn case law lightly

“Although this Court strongly believes in the doctrine of stare decisis and makes every reasonable attempt to maintain the stability of the law, this Court has had to recognize on occasion that it is necessary and prudent to admit prior mistakes and to take the steps necessary to ensure that we foster a system of justice that is manageable and that is fair to all concerned.”

Foremost Ins. Co. v. Parham, 693 So. 2d 409, 421 (Ala. 1997) (emphasis added)

The simple holding of Ex parte C.D. is that putative fathers have rights that exist independent of an adjudication of paternity; there voluntary forfeiture of custody of a child prior to adjudication is relevant to child custody determination.
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. p. 17
We now state a new standard regarding the period that a court may consider in determining whether a putative father has voluntarily forfeited his presumptive right to a child born out wedlock. The relevant period begins when “a putative father knows, or should know, of his paternity of a child born out of wedlock.” p. 27
At the end of the day, this is good news for children. Some children are raised for years in a foster home while their father’s have abandoned them. That abandonment has drastic negative impact on the children, whether or not the father’s have gone through a legal process of legitimation. With this new precedent, a putative father’s abandonment will be held just as damaging to a child as a legal father’s abandonment.