Opinion
AV92000249.
December 3, 1993.
Appeal from the Circuit Court, Shelby County, Patricia M. Smith, J.
Roger D. Burton and Charles H. Boohaker of Jaffe, Burton Digiorgio, Birmingham, for appellant.
James J. Odom, Birmingham, Frank C. Ellis, Jr., Columbiana, for appellees.
This case involves child custody.
A complete recitation of all proceedings held previously in this case is unnecessary. See P.M.L. v. D.T.P. and A.J.P., 613 So.2d 1288 (Ala.Civ.App. 1992).
The father presents the following issues for review: (1) whether there was clear and convincing evidence to support the finding that the minor child is dependent; (2) whether the trial court improperly considered hearsay evidence to adjudicate the dependency of the minor child; and (3) whether the disposition of custody was proper.
On January 4, 1993, the trial court, following a hearing, entered a lengthy, detailed order wherein it found, "based on the factors considered herein, [P.M.L.] is an unfit and improper person to be intrusted with the care and upbringing of the minor child." The law is well settled that, as between a natural parent and a non-parent, the natural parent has a right to custody of his child. Ex parte Terry, 494 So.2d 628 (Ala. 1986). This presumption, however, can be overcome by a finding, supported by sufficient and competent evidence, that the natural parent is unfit to have the custody of the minor child. Id. A complete review of the record and the facts considered supports the trial court's determination.
The admission of a letter from Dr. William M. Patterson is the subject of the father's second issue on appeal. The father contends that the letter was hearsay and that the trial court improperly used the letter for adjudication of dependency. The parties stipulated at trial that the letter from Dr. Patterson would be admitted for dispositional purposes only. The trial court's order stated the following: "For dispositional purposes only, this Court considered the report of Dr. William M. Patterson." Based on the stipulation of the parties and the specific language used by the trial court, we find no error.
The issue of child custody is a matter of judicial discretion and the judgment of the trial court will not be disturbed absent a clear abuse of that discretion. McKinney v. Alabama Department of Pensions Security, 475 So.2d 568 (Ala.Civ.App. 1985). This court finds no abuse of discretion. The lengthy and detailed order of the trial court supports application of the ore tenus rule and, therefore, the judgment of the trial court is affirmed.
AFFIRMED.
ROBERTSON, P.J., and THIGPEN, J., concur.