Thus, this Court has recognized that homosexual conduct and the homosexual lifestyle have a detrimental effect on the well-being of children. See also H.J.B., 628 So.2d 753, 756 (Ala.Civ.App. 1993) (father's admitted homosexuality was a factor supporting a "change of circumstances sufficient to warrant a change of custody"); McGinnis v. McGinnis, 567 So.2d 390, 392 (Ala.Civ.App. 1990) (affirming the trial court's conclusion that the children's exposure to their mother's homosexual relationship and use of illegal drugs "created an environment in which the minor children should not be reared"). To varying degrees, other state courts have agreed that a parent's homosexual behavior and lifestyle may be considered in child-custody and visitation matters.

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 re Parsons, 914 S.W. 2d at 894. This is in accord with decisions from other jurisdictions, see H.J.B. v. P.W., 628 So.2d 753 (Ala.Civ.App. 1993); S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985); Taylor v. Taylor, 110 S.W.2d 731 (Ark. 2003); Downey v. Muffley, 767 N.E.2d 1014 (Ind.Ct.App. 2002); Lundin v. Lundin, 563 So. 2d 1273 (La.Ct.App. 1990); Bezio v. Patenaude, 410 N.E.2d 1207 (Mass. 1980); Hollon v. Hollon, 784 So. 2d 943, 949 (Miss. 2001); Hassenstab v. Hassenstab, 570 N.W.2d 368 (Neb.Ct.App. 1997); M.P. v. S.P., 404 A.2d 1256 (N.J.Super.Ct. App. Div. 1979); Guinan v. Guinan, 477 N.Y.S. 2d 830 (1984); Conkel v. Conkel, 509 N.E. 2d 983 (Ohio Ct. App. 1987); Stroman v. Williams, 353 S.E. 2d 704 (S.C.Ct.App. 1987); Van Driel v. Van Driel, 525 N.W. 2d 37 (S.D. 1994); In re Marriage of Cabalquinto, 669 P.2d 886 (Wash.

Hence, this court must recognize the basis of the ore tenus presumption, namely, the trial court's ability to hear and to observe the witnesses as they testify and to determine their credibility. H.J.B. v. P.W., 628 So.2d 753 (Ala.Civ.App. 1993). Suffice it to say that, having reviewed the record, we conclude that the evidence was sufficient to support a finding either that Lecil was incompetent when he executed the deed, or that the deed was the product of undue influence, or both.

In situations where the evidence is conflicting, this court must be most cognizant of the underlying significance of the ore tenus presumption, which is the trial court's ability to hear and to observe the witnesses as they testify and to determine their credibility. H.J.B. v. P.W., 628 So.2d 753 (Ala.Civ.App. 1993). In the instant case the trial court heard the testimony of the older daughter and, while totally aware of her potential bias, expressly found that she was a credible witness and accepted her testimony as true.

In Steven L. v. Dawn J., supra, the mere fact that the mother had tested positive for HIV was not, without more, a material change of circumstances warranting change of custody from the mother to the father. In contrast, see H.J.B. v. P.W., 628 So.2d 753 (Ala. Civ. App. 1993), where a change-of-custody order from the father to the mother was affirmed on appeal in view of the custodial father's admitted homosexuality, HIV positive status, and lack of credibility as a witness which included attempting to hide his health status from the court, as well as the mother's improvement as a parent since the divorce. Admittedly, the foregoing cases deal with the custodial or visitation rights of natural parents, whereas the instant case involves whether it is in the best interests of a child to stay with his foster parents, one of whom has AIDS. The State's brief asserts that J.B. and G.B. are persons without the standing of custodial parents "because they are `legal strangers' to John [T.] who through deceit gained custody of a `stranger child.'"