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March 27, 2026 Get Citation Alerts Download PDF Add Note

In re: B.F. v. C.D. and A.D.

Supreme Court of Alabama

• Citations: None known
• Docket Number: SC-2025-0655

• Judges: Bryan, J.

• Opinion

• Authorities (36)

• Cited By (0)

• Summaries (0)

• Similar Cases (10.9K)

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Combined Opinion

Rel: March 27, 2026

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2025-2026

---

SC-2025-0655

---

Ex parte C.D.

PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS

(In re: B.F.

v.

C.D. and A.D.)

(Coffee Juvenile Court: JU-21-122.02;
Court of Civil Appeals: CL-2025-0032)
SC-2025-0655

BRYAN, Justice.

B.F. ("the father") filed a petition in the Coffee Juvenile Court ("the

juvenile court"), seeking custody of his son, S.G.R. ("the child"). The

juvenile court had previously placed the child in the custody of C.D. and

her husband, A.D.; C.D. is a longtime friend of the child's mother, M.R.

("the mother"). The juvenile court denied the father's petition, and he

appealed to the Court of Civil Appeals. The Court of Civil Appeals

reversed the judgment, concluding that the juvenile court had applied the

incorrect standard in evaluating whether the child's custody should be

modified. B.F. v. C.D., [Ms. CL-2025-0032, Aug. 22, 2025] ___ So. 3d ___

(Ala. Civ. App. 2025). The juvenile court had applied the standard set

forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984); the Court of Civil

Appeals concluded that the juvenile court should have applied the

standard set forth in Ex parte Terry, 494 So. 2d 628 (Ala. 1986). In

making that conclusion, the Court of Civil Appeals correctly determined

that it was bound by this Court's decisions in Ex parte D.J., 645 So. 2d

303 (Ala. 1994), and Ex parte G.C., 924 So. 2d 651 (Ala. 2005). In a

special concurrence, Presiding Judge Moore urged this Court to overrule

Ex parte D.J. and Ex parte G.C.; all the other judges on that court joined

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the special concurrence. C.D. then petitioned this Court for a writ of

certiorari, asking this Court to overrule Ex parte D.J. and Ex parte G.C.,

and we granted the petition to consider that request. For the reasons

discussed below, we now overrule Ex parte D.J. and Ex parte G.C. insofar

as they conflict with the new standard that we establish today, and we

reverse and remand.

The child was born out of wedlock in April 2021. In October 2021,

the juvenile court determined that the child was dependent, and that

court granted physical and legal custody of the child to C.D. and her

husband, A.D. C.D. is a longtime friend of the mother, and C.D. and A.D.

also have custody of two other children of the mother; those children are

half siblings of the child. The mother voluntarily relinquished custody of

the child and agreed that the child should reside with C.D. The juvenile

court's order declaring the child to be dependent and granting custody to

C.D. and A.D. also stated that the father of the child was unknown.

The father was incarcerated in June 2021, shortly after the child

was born in April 2021 but before the child was declared dependent in

October 2021. The father remained incarcerated until July 2022, when

he entered a substance-abuse rehabilitation program. The father

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finished that program in December 2023. In February 2024, the father

filed a "Petition to Determine Paternity and Custody" in the juvenile

court; insofar as the petition sought custody of the child, the juvenile

court treated it as a petition to modify custody. On June 7, 2024, the

juvenile court, relying on genetic testing, entered an order determining

the father to be the child's biological father. Following an ore tenus trial,

the juvenile court denied the father's petition to modify custody, but the

court did award the father visitation with the child.

As noted, the juvenile court applied the standard set forth in Ex

parte McLendon to determine whether custody of the child should be

modified. On appeal, the Court of Civil Appeals concluded that the

juvenile court should have applied the standard set forth in Ex parte

Terry. In Ex parte Terry, this Court stated the standard in a custody

dispute between a parent and a nonparent. Under that standard, " '[a]

natural parent has a prima facie right to the custody of his or her child. ' "

Ex parte Terry, 494 So. 2d at 630 (quoting Ex parte McLendon, 455 So.

2d at 865). However, this "parental presumption" has two exceptions:

" '[T]his presumption does not apply after a voluntary forfeiture of

custody or a prior decree removing custody from the natural parent and

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awarding it to a non-parent. ' " Id. (emphasis omitted). 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."

B.F., ___ So. 3d at ___.

In this case, the juvenile court concluded that the parental

presumption set forth in Ex parte Terry did not apply because, that court

concluded, the father had voluntarily forfeited his presumptive right to

custody of the child. Thus, because the juvenile court determined that

the forfeiture exception to the Terry presumption applied, the court
5
SC-2025-0655

applied the standard set forth in Ex parte McLendon. The 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. In Ex parte G.C., this Court, citing our

decision in Ex parte D.J., stated a bright-line rule concerning the relevant

period in evaluating whether a father has forfeited his presumptive right

to custody of a child born to unmarried parents: "[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." 924

So. 2d at 657.1 In this case, the juvenile court, in determining that the

father had forfeited his right to custody, considered matters that occurred

before the father was legally declared to be the child's biological father

on June 7, 2024. Accordingly, the Court of Civil Appeals concluded that,

"because he had not been adjudicated the legal father of the
child until June 7, 2024, the father could not have voluntarily
forfeited his right to custody of the child before June 7, 2024,
and his prosecution of the present action, which he initiated

1There were various special writings in Ex parte G.C. As the main
opinion and Presiding Judge Moore's special writing in this case noted, a
review of the special writings in Ex parte G.C. shows that a majority of
the Court fully concurred in that part of the main opinion addressing
voluntary forfeiture.
6
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several months earlier, establishes that he had not
voluntarily forfeited his right to custody after June 7, 2024."

___ So. 3d at ___. Concerning whether the juvenile court's judgment

could be affirmed on the alternative ground that the second exception to

the Terry presumption applied, the Court of Civil Appeals stated that,

"because [the father] had not been adjudicated the legal father
of the child before June 7, 2024, and, thus, had no right to
custody of the child before June 7, 2024, the 2021 dependency
judgment transferring custody of the child to C.D. and A.D.
could not be considered a prior judgment removing the child
from his custody."

___ So. 3d at ___. Thus, the Court of Civil Appeals concluded that,

because neither exception to the Terry presumption applied, "the juvenile

court was required to consider the father's claim for custody under the

Terry standard rather than under the McLendon standard." ___ So. 3d

at ___. Accordingly, because the juvenile court had applied the wrong

standard, the Court of Civil Appeals reversed the judgment and

remanded the case.

The Court of Civil Appeals correctly applied the rule stated in Ex

parte G.C., which relied on Ex parte D.J. However, Presiding Judge

Moore wrote a special concurrence expressing his disagreement with

those decisions and urging this Court to overrule them; all the other

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SC-2025-0655

judges on the court joined that writing. C.D. then petitioned this Court

for a writ of certiorari, asking us to overrule Ex parte D.J. and Ex parte

G.C., and we granted the petition.

In considering whether to overrule precedent, we are guided by the

following principles: "Stare decisis is '[t]he doctrine of precedent, under

which it is necessary for a court to follow earlier judicial decisions when

the same points arise again in litigation.' Black's Law Dictionary 1443

(8th ed. 2004)." Goldome Credit Corp. v. Burke, 923 So. 2d 282, 292 (Ala.

2005). However, " '[s]tare decisis is not an inexorable command. ' " Ex

parte Capstone Bldg. Corp., 96 So. 3d 77, 89 n.8 (Ala. 2012) (quoting 20

Am. Jur. Courts § 131 (2005)).

"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).

Presiding Judge Moore thoroughly argued in favor of overruling Ex

parte D.J. and Ex parte G.C. insofar as those decisions addressed the

period that a court may consider in determining whether a putative

8
SC-2025-0655

father has voluntarily forfeited his presumptive right to a child born out

of wedlock:

"As the main opinion holds, the supreme court's decisions in
Ex parte D.J., 645 So. 2d 303 (Ala. 1994), and Ex parte G.C.,
924 So. 2d 651 (Ala. 2005), control the outcome of this case. I
write specially to express my disagreement with those
decisions and to urge the supreme court to overrule them.

"In Ex parte D.J., V.J., the mother, and W.B.Z., the
putative father, had never married, but they conceived a child
together, B.W.J., who was born in 1983. V.J. and B.W.J.
intermittently resided with D.J., the child's maternal
grandmother. In 1991, V.J. unexpectedly died. W.B.Z.
subsequently commenced legitimation proceedings regarding
B.W.J., and D.J. filed a petition to obtain custody of B.W.J. in
the Mobile Juvenile Court, which awarded her pendente lite
custody. Upon a final hearing, the Mobile Juvenile Court
awarded D.J. custody of B.W.J. On appeal, this court reversed
the judgment, holding that the Mobile Juvenile Court had
erred in failing to apply the parental presumption in favor of
W.B.Z. See W.B.Z. v. D.J., 645 So. 2d 300 (Ala. Civ. App.
1993). Upon a petition for the writ of certiorari, the supreme
court affirmed our decision.

"In Ex parte Terry, 494 So. 2d 628 (Ala. 1986), our
supreme court held that, in a child-custody dispute between a
parent and a nonparent, the parent has a presumptive right
to the custody of his or her child. In Ex parte D.J., the
supreme court determined that the 'parental presumption'
recognized in Ex parte Terry applies equally to a putative
father of a child born out of wedlock because, it said, like any
other natural parent, a putative father enjoys a prima facie
right to the custody of his child as against a nonparent. The
supreme court then explained that the parental presumption
' "does not apply after [1] a voluntary forfeiture of custody or
[2] a prior decree removing custody from the natural parent
9
SC-2025-0655

and awarding it to a nonparent. " ' 645 So. 3d at 306 (quoting
Ex parte McLendon, 455 So. 2d 863, 865 (Ala. 1984)). The
supreme court decided that neither exception applied to
W.B.Z. First, the supreme court held that W.B.Z. could not
have voluntarily relinquished custody of B.W.J. to V.J. and
D.J. because, the court noted, under the common law, V.J. had
a right to exclusive custody of B.W.J. until her death. The
supreme court then said:

" 'Guided by this rule, we conclude that W.B.Z., a
putative father who, before V.J.'s death never
possessed legal or physical custody of his
unlegitimated child, acquired no custody rights
that could have been relinquished to V.J. Custody
vested exclusively in V.J. at the birth of her child
and remained there until she died on April 27,
1991. W.B.Z. did not, therefore, relinquish any
custody rights before V.J.'s death, because -- vis-à-
vis V.J., at least -- he possessed none. Moreover,
his promptness in initiating legitimation
proceedings and in seeking custody after her death
conclusively rebuts any contention that he
relinquished custody rights thereafter. Thus, we
conclude that the "relinquishment" exception to
the parental presumption provided no basis for the
standard applied by the trial court in this case.'

"645 So. 2d at 307. Second, the supreme court then held that
the prior-judgment exception did not apply because W.B.Z.
had never acquired custody of B.W.J. and no final judgment
had been entered removing or transferring the custody of
B.W.J. from him before the present litigation. 645 So. 2d at
307-08.

"In R.K v. R.J., 843 So. 2d 774, 781 (Ala. Civ. App. 2002),
this court misconstrued Ex parte D.J. as holding that, until a
putative father has been legally adjudicated to be the father
of a child born out of wedlock, he has no custodial rights to
10
SC-2025-0655

forfeit. This court held that, in determining whether a
voluntary forfeiture has occurred, a trial court can consider
only the conduct of a putative father after his paternity has
been judicially established. In R.O.M. v. B.B., 854 So. 2d 98
(Ala. Civ. App. 2003), Judge Murdock stated in a special
writing concurring in the result that

" 'Ex parte D.J. stands for the proposition that if
the issue in a custody case is whether a parent has
voluntarily relinquished that custody, a trial court
may not consider evidence of the parent's actual
physical or psychological abandonment of the child
that occurs before the parent is legally declared by
a court to be the parent.'

" 854 So. 2d at 105 (Murdock, J., concurring in the result).
Actually, Ex parte D.J. did not hold that voluntary
relinquishment by a putative father may occur only after his
paternity has been judicially established; instead, the
supreme court held that W.B.Z. had acquired custody rights
to B.W.J. once V.J. lost custody of B.W.J. due to her death,
and the supreme court examined the actions of W.B.Z.
following that loss of custody, not just his actions after he had
legitimated B.W.J., in deciding whether he had voluntarily
relinquished his custody rights. See Ex parte G.C., 924 So. 2d
at 684 n.23 (Parker, J., dissenting) (explaining the substance
of the holding of Ex parte D.J.). Thus, Ex parte D.J. holds
that a trial court should consider the conduct of a putative
father following the mother's loss of the custody of her child
because that is when he gains a superior right to custody of
the child.

"Nevertheless, in Ex parte G.C., Justice Stuart, writing
for the court, adopted this court's misinterpretation of Ex
parte D.J., stating:

" 'In Ex parte D.J., 645 So. 2d 303 (Ala. 1994), this
Court determined that an examination of whether
11
SC-2025-0655

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. See also R.K. v. R.J., 843 So. 2d 774 (Ala.
Civ. App. 2002); and R.O.M. v. B.B., 854 So. 2d 98,
105 (Ala. Civ. App. 2003) (Murdock, J., concurring
specially).'

" 924 So. 2d at 657. Thus, in determining whether G.C., Jr.,
the putative father in that case, had voluntarily forfeited his
custodial rights to J.G.C., his child born out of wedlock, the
supreme court considered only the conduct of G.C., Jr., after
August 2000, when he was legally declared to be the father of
J.G.C. Id. A close reading of the several special writings in
Ex parte G.C. shows that a majority of the court -- Chief
Justice Nabers and Justices Smith, Bolin, See, and Lyons --
concurred with the voluntary-forfeiture analysis used by
Justice Stuart. So, as the law stands today, when
determining whether a putative father has voluntarily
relinquished his custodial rights to a child, a trial court may
consider only evidence of his conduct occurring after his
paternity has been established and must disregard any
conduct occurring from the time the child is born to the date
of the adjudication of paternity. In my opinion, that
statement of the law is clearly erroneous.

"In Daniels v. Trawick, 232 Ala. 466, 467, 168 So. 551,
551 (1936), a young couple married, but separated after the
wife gave birth to a child. A few weeks after the child was
born, the wife and the child moved in with the child's
maternal grandparents, while the husband resided separately
on his family's farm. When the child was still an infant, the
wife suffered a fatal illness, and, as a dying request, she
indicated that she wanted the maternal grandparents to raise
the child. A custody dispute arose between the husband, the
presumed father of the child, and the maternal grandparents,
and the trial court awarded custody of the child to the
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maternal grandparents. The supreme court affirmed the
judgment, saying:

" 'The prima facie right is with the father. ... The
parent may forfeit this prima facie right by his
conduct ..., and there is evidence justifying the
conclusion that [the husband] was unkind and
inattentive to his wife during her illness and
indifferent to the child and its welfare (refusing to
provide for it, except upon unjustifiable
conditions), while [the maternal grandparents]
were caring for them both in their humble home.'

" 232 Ala. at 467, 168 So. at 552. Daniels shows that a natural
father may, by his indifferent conduct toward a child and
refusal to provide for the child as a father should, forfeit his
right to custody of the child.

"In Ex parte D.J., when B.W.J. was three years old,
W.B.Z. moved to Texas. While residing in Texas, W.B.Z. had
only negligible involvement with B.W.J. W.B.Z. did not
attempt to legitimate B.W.J. or obtain his custody until after
V.J. died. See W.B.Z. v. D.J., 645 So. 2d at 303 (Thigpen, J.,
concurring in part and dissenting in part). Under the
reasoning of Daniels, W.B.Z., by his indifference toward
B.W.J. over many years, forfeited his parental presumption;
however, in Ex parte D.J., the supreme court did not analyze
the case to determine whether W.B.Z. had forfeited his
parental presumption; instead, it analyzed the case to
determine whether W.B.Z. had 'voluntarily relinquished' his
custody rights to the child, i.e., whether he had voluntarily
and intentionally surrendered a known right. 645 So. 2d at
306. The supreme court reasoned that a putative father
cannot relinquish his custody rights to a child born out of
wedlock to the mother of that child because, as against the
mother, he has no custody rights. The supreme court said:
'[A] fortiori, [a putative father] cannot waive or relinquish a
right that does not exist.' 645 So. 2d at 307. The supreme
13
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court determined that W.B.Z. had received custody rights to
the child only upon the death of the mother, and, therefore, it
said, he could relinquish those rights only after that point.
Accordingly, the supreme court confined its examination of
the evidence to the actions of W.B.Z. after the date of the
mother's death, which showed that he was enforcing his
custody rights, and it disregarded W.B.Z.'s actions during the
years when he had acquiesced in V.J.'s and D.J.'s providing
almost exclusive care for the child. As a result, W.B.Z., a man
who was almost a complete stranger to B.W.J., was
determined to be entitled to custody without even a
consideration of whether that custody arrangement would
serve the best interests of the child.

"A comparison with Daniels shows that the holding in
Ex parte D.J. bestows upon a putative father a parental
presumption even stronger than the one bestowed on a
presumed father -- a presumed father must act as a parent
toward his child from the time the child is born, or otherwise
forfeit his parental presumption, whereas a putative father
can fail or refuse to act as a parent toward his child so long as
the mother is exercising her superior right to custody, and his
misconduct will not affect his right to the parental
presumption once the mother dies or otherwise loses custody
of the child. In essence, the supreme court held that a
putative father cannot forfeit his custodial rights regardless
of his misconduct toward the child until the law bestows upon
him primary custody rights to the child. The supreme court
justified this disparity in treatment solely on the nature of the
legal rights of a putative father to a child born out of wedlock.

"It appears that the supreme court mischaracterized the
nature of the custody rights of a putative father. Formerly,
the putative father of a child born out of wedlock had no right
to custody of the child, see Matthews v. Hobbs, 51 Ala. 210
(1874), but, in 1917, the supreme court held that a 'putative
father is entitled to the ... custody [of a child born out of
wedlock] as against any person but the mother.' Garrett v.
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Mahaley, 199 Ala. 606, 608, 75 So. 10, 11 (1917). See also Ex
parte Shuttleworth, 410 So. 2d 896, 899 (Ala. 1981); Griggs v.
Barnes, 262 Ala. 357, 78 So. 2d 910 (1955); and Lewis v.
Crowell, 210 Ala. 199, 200, 97 So. 691, 692 (1923). Thus, a
putative father has at least secondary custody rights to a child
born out of wedlock from the time the child is born.
Furthermore, a putative father can acquire the same custody
rights as the mother by legitimating the child. See B.E.B. v.
H.M., 822 So. 2d 429, 431 (Ala. Civ. App. 2001) (holding that,
upon legitimation of a child born out of wedlock, the putative
father and the mother stand on equal footing in a custody
dispute). If a putative father does not legitimate the child, he
still has a right to form and engage in a paternal relationship
with the child that the mother cannot unilaterally thwart.
See D.W. v. J.W.B., 230 So. 3d 763, 775 (Ala. Civ. App. 2015),
rev'd, Ex parte J.W.B., 230 So. 3d 783 (Ala. 2016). If a
putative father avails himself of the unique opportunity
presented by his biological connection to a child to fully
commit to the rearing of the child, he is entitled to the same
rights under federal law as a presumed father. See Lehr v.
Robertson, 463 U.S. 248, 261-62 (1983). If a putative father
does not act as a parent toward the child, the state is not
obligated to give special consideration to his interests when
deciding the custody of his child. Id.

"In Ex parte D.J., the supreme court excused W.B.Z.
from acting as a real father toward the child on the ground
that he had no custody rights to the child when, in fact, he did
have certain custody rights that he did not seek to enforce
while V.J. and D.J. cared for the child, such as the right to
visitation, see Bagwell v. Powell, 267 Ala. 19, 22, 99 So. 2d
195, 197 (1957), the right to legitimate the child, see Ala. Code
1975, § 26-11-2, and the right to petition for custody of the
child. See B.E.B., supra. During V.J.'s lifetime, W.B.Z. not
only chose not to enforce his legal rights to assure a
relationship with B.W.J., but he also intentionally absented
himself from B.W.J. by moving to Texas and engaging in only
negligible contact with B.W.J. for over five years. Yet, that
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abandonment and its undoubted effect on B.W.J. was not even
allowed to be considered in deciding who should receive
custody of B.W.J. after V.J. died because, theoretically, W.B.Z.
had no custody rights to B.W.J. to relinquish before her death.

"Our legislature recognizes that a putative father may
forfeit his rights to a child born out of wedlock before he has
acquired any custody rights vis-a-vis the mother. See Ala.
Code 1975, § 26-10C-1(i) ('Any person who claims to be the
natural father of a child and fails to file his notice of intent to
claim paternity pursuant to subsection (a) prior to or within
30 days of the birth of a child born out of wedlock, shall be
deemed to have given an irrevocable implied consent in any
adoption proceeding.'); Ala. Code 1975, § 26-10E-9 (stating
that a putative father who abandons the mother for four
months while knowing she is pregnant is presumed to have
impliedly consented to relinquish the unborn child for
adoption). Our supreme court should also recognize that a
putative father may forfeit his right to the parental
presumption before he has acquired full custody rights to a
child. The fact that the mother is exercising her superior
custody rights to a child should not relieve a putative father
of discharging his parental responsibilities to and for the
child, even if his custody rights are considered secondary in
nature. Ex parte D.J. should be overruled. See R.K. v. R.J.,
843 So. 2d at 780 (noting irreconcilable tension between the
holding in Ex parte D.J. and other child-custody cases). A
child born out of wedlock deserves the love, affection, and care
of both parents, just as a child born in wedlock, and, if the
putative father fails to act as a real parent toward his child
from the time the child is born, he should not benefit from any
presumption that he is entitled to custody after the mother
loses custody of the child.

"Likewise, the supreme court should overrule Ex parte
G.C. The custodial rights of a putative father do not arise
solely when paternity is judicially established, but, as shown,
a putative father has certain limited custodial rights from the
16
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time the child is born based strictly on his relationship to the
child and any greater inchoate custody rights he may have
ripen once the mother loses custody of the child. 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. A trial court should not
be precluded from considering the circumstances existing
before paternity is judicially established in deciding whether
a putative father should be entitled to the parental
presumption. If a putative father knows, or should know, of
his paternity of a child born out of wedlock and fails to seize
his opportunity to forge a paternal relationship with the child,
the trial court should be allowed to determine that he has
voluntarily forfeited his presumptive right to custody of the
child. See, e.g., K.C. v. D.C., 891 So. 2d 346, 349 (Ala. Civ.
App. 2004) (holding that, once the mother of a child born out
of wedlock acknowledged that she could not properly rear the
child and asked her parents to assume custody of the child,
the putative father had a superior right to custody of the child
and his failure to act upon it resulted in a voluntary forfeiture
of his rights, even though he had never been adjudicated to be
the legal father of the child). Nothing in the law supports the
rule adopted in Ex parte G.C."

___ So. 3d at ___ (Moore, P.J., concurring specially).

Presiding Judge Moore then discussed the juvenile court's

determination that the father in this case had voluntarily forfeited his

presumptive right to custody of the child. He then opined that, under a

proper understanding of what the law should be -- but not what the law

currently is under Ex parte D.J. and Ex parte G.C. -- the juvenile court's

judgment would have been affirmed:
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"In my opinion, the juvenile court correctly decided the
case under the law as espoused in Daniels, supra, and a legion
of other cases. The juvenile court reconciled conflicting
evidence regarding the father's knowledge of his paternity,
and, based upon its firsthand observations, it determined that
the father knew or should have known that he was the
biological father of the child soon after the child was born.
The juvenile court assessed the father's conduct toward the
child from that point and concluded that the father had not
acted as a concerned parent toward the child for the first three
years of his life. The juvenile court determined that the father
had thereby voluntarily forfeited his presumptive right to
custody, and it assessed the case to determine whether the
best interests of the child would be materially promoted by a
change of custody to the father. The father does not contest
the ultimate determination denying his custody claim; he
appeals the judgment by asserting only that the juvenile court
should have applied the parental presumption. The judgment
would be affirmed if Daniels remained in place.

"I agree, however, with the main opinion that the
judgment violates the law as set forth in Ex parte D.J. and Ex
parte G.C. Under Ex parte D.J., as misinterpreted by Ex
parte G.C., when deciding whether the father had voluntarily
forfeited his custody rights, the juvenile court could not
consider the conduct of the father before June 7, 2024, when
it adjudicated the paternity of the child. The juvenile court
was required to close its eyes to the abandonment of the child
by the father before June 7, 2024, and to pretend that the
father was an active parent entitled to the parental
presumption. However, the juvenile court did not apply that
standard; instead, it based its finding of voluntary forfeiture
exclusively on the conduct of the father before the paternity
adjudication. This case clearly reveals how the opinions in Ex
parte D.J. and Ex parte G.C. lead to unjust results. Upon
reexamination, our supreme court should recognize the errors
in those opinions. Unless and until they are overruled,
however, those cases must be followed."
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___ So. 3d at ___ (Moore, P.J., concurring specially).

As Presiding Judge Moore observed, in R.K. v. R.J., 843 So. 2d 774

(Ala. Civ. App. 2002), the Court of Civil Appeals noted tension between

Ex parte D.J. and other child-custody cases. Judge Murdock, writing for

the court in R.K., described this tension stemming from Ex parte D.J., a

tension that also applies to Ex parte D.J.'s progeny Ex parte G.C., which

was released three years after R.K.:

"The 'voluntary forfeiture' exception to a natural
parent's prima facie right to custody recognizes that a parent's
voluntary forfeiture of his or her child tends to rebut the
presumption that the parent in question will best provide the
love, care, security, and upbringing the child needs.
Concomitantly, it is a reflection of the well-established
principle that 'ties of affection resulting from years of
association between the child and its custodian' are relevant
to a determination of the child's best interests. See generally
Dale v. Dale, 54 Ala. App. 505, 507, 310 So. 2d 225, 227 (Ala.
Civ. App. 1975); McGrady v. Brown, 230 Ala. 484, 161 So. 475,
476 (1935) ( ' "relinquishment of ... custody to another and
continued acquiescence therein are matters to be considered
by the court in determining the question of prime importance
-- the welfare of the child " ' ) (quoting Payne v. Payne, 218 Ala.
330, 331, 118 So. 575, 576 (1928)). As this court explained in
Borsdorf v. Mills:

" 'To tear [a child] from his home and those
he knows as his parents and the source of love,
safety and security merely to give sanction to a
principle of priority of right is unconscionable. The
principle of priority of right of a parent to custody
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is founded upon the premise that because of a
blood relation and instinct, such parent will better
love and care for a child than one not so
related. Such premise may be theoretically correct
but practical experience has often proved it
incorrect. The bonds of love between parent and
child are not dependent upon blood relation and
instinct, but may be forged as strongly in the
crucible of day to day living. Out of the actual
relationship of parent and child love grows. It is
not merely a product of the biological function of
conception and giving birth. To give paramount
consideration to the principle of parental priority
or ownership in custody decisions would often be
an anathema to the best interest of the child. '

" 49 Ala. App. 658, 661-62, 275 So. 2d 338, 341 (Ala. Civ. App.
1973) (quoted in part with approval in Brill v. Johnson, 293
Ala. 435, 437, 304 So. 2d 595, 597 (Ala. 1974) (Bloodworth, J.,
concurring specially, and joined by five members of the
Court)).

"….

"In Ex parte D.J., although the father of an illegitimate
child knew of the child's existence and had abandoned the
child, our Supreme Court held that there had been no
'voluntary forfeiture' for purposes of the natural father's
presumptive claim to custody. The court reasoned that during
the years the father had forfeited physical custody of the child,
he had taken no steps to be adjudicated as the child's father
and, therefore, could successfully assert that he had no legal
right to custody of the child during that time. Without such a
right, the D.J. court further reasoned, there could be no
'voluntary forfeiture.' 645 So. 2d at 306-07.

"….

20
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"We note a tension between our Supreme Court's
holding in Ex parte D.J. and the principles reflected in
Borsdorf and the other cases discussed above. We also note
that these latter principles are likewise reflected in federal
constitutional jurisprudence.

"In Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77
L. Ed. 2d 614 (1983), the United States Supreme Court began
its analysis by explaining that state law 'almost universally'
expresses an appropriate preference for the formal family, but
that in some cases the United States Supreme Court has held
that the federal constitution provides even greater protection
for certain formal family relationships:

" 'In some cases, however, this Court has held
that the Federal Constitution supersedes state law
and provides even greater protection for certain
formal family relationships. In those cases, as in
the state cases, the Court has emphasized the
paramount interest in the welfare of children and
has noted that the rights of the parents are a
counterpart of the responsibilities they have
assumed. Thus, the "liberty" of parents to control
the education of their children that was vindicated
in Meyer v. Nebraska, 262 U.S. 390 , 43 S. Ct. 625,
67 L. Ed. 1042 , and Pierce v. Society of
Sisters, 268 U.S. 510 , 45 S. Ct. 571, 69 L. Ed.
1070 , was described as a "right, coupled
with the high duty, to recognize and prepare [the
child] for additional obligations." Id., at 535 [, 45
S. Ct. 571 ]. The linkage between parental duty
and parental right was stressed again in Prince v.
Massachusetts, 321 U.S. 158, 166 , 64 S. Ct. 438,
88 L. Ed. 645 , when the Court declared it a
cardinal principal "that the custody, care and
nurture of the child reside first in the parents,
whose primary function and freedom include
preparation for obligations the state can neither
21
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supply nor hinder." Ibid. In these cases the Court
has found that the relationship of love and duty in
a recognized family unit is an interest in liberty
entitled to constitutional protection. See also
Moore v. City of East Cleveland, 431 U.S. 494 , 97
S. Ct. 1932, 52 L. Ed. 2d 531 (plurality
opinion).'

" Id. at 257-58, 103 S. Ct. 2985.

"Accordingly, the United States Supreme Court
recognized in Lehr that ' "[p]arental rights do not spring full-
blown from the biological connection between parent and
child. They require relationships more enduring. " ' Lehr, 463
U.S. at 260, 103 S. Ct. 2985 (quoting Caban v. Mohammed,
441 U.S. 380, 397, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979)). As
the Lehr Court noted,

" 'Commentators have emphasized the
constitutional importance of the distinction
between an inchoate and a fully developed
relationship. See Comment, 46 Brooklyn L. Rev.
95, 115-116 (1979) ("the unwed father's interest
springs not from his biological tie with his
illegitimate child, but rather, from the
relationship he has established with and the
responsibility he has shouldered for his child");
Note, 58 Neb. L. Rev. 610, 617 (1979) ("a putative
father's failure to show a substantial interest in
his child's welfare and to employ methods provided
by state law for solidifying his parental rights ...
will remove from him the full constitutional
protection afforded the parental rights of other
classes of parents"); Note, 29 Emory L.J. 833, 854
(1980) ("an unwed father's rights in his child do not
spring solely from the biological fact of his
parentage, but rather from his willingness to

22
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admit his paternity and express some tangible
interest in the child").'

"Lehr, 463 U.S. at 261, n. 17, 103 S. Ct. 2985. The Court
therefore further recognized that an unwed father's
demonstration of commitment to his child is determinative of
his due-process rights:

" 'When an unwed father demonstrates a full
commitment to the responsibilities of parenthood
by "com[ing] forward to participate in the rearing
of his child," Caban [v. Mohammed], 441 U.S.
[380,] 392[, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979)],
his interest in personal contact with his child
acquires substantial protection under the Due
Process Clause. At that point it may be said that
he "act[s] as a father toward his children." Id., at
389, n. 7 [, 99 S. Ct. 1760 ]. But the mere existence
of a biological link does not merit equivalent
constitutional protection. The actions of judges
neither create nor sever genetic bonds. "[T]he
importance of the familial relationship, to the
individuals involved and to the society, stems from
the emotional attachments that derive from the
intimacy of daily association, and from the role it
plays in 'promot[ing] a way of life' through the
instruction of children ... as well as from the fact of
blood relationship." Smith v. Organization of
Foster Families for Equality and Reform, 431 U.S.
816, 844 , 97 S. Ct. 2094, 2109-2110, 53 L. Ed. 2d
14 (quoting Wisconsin v. Yoder, 406 U.S.
205, 231-233 , 92 S. Ct. 1526, 32 L. Ed. 2d 15 ). '

"Lehr, 463 U.S. at 261, 103 S. Ct. 2985 (emphasis added;
footnote omitted).

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"Conversely, when an unwed father fails to 'come
forward,' he will not acquire substantial constitutional
protection:

" 'The significance of the biological
connection is that it offers the natural father an
opportunity that no other male possesses to
develop a relationship with his offspring. If he
grasps that opportunity and accepts some measure
of responsibility for the child's future, he may
enjoy the blessings of the parent-child relationship
and make uniquely valuable contributions to the
child's development. If he fails to do so, the
Federal Constitution will not automatically
compel a State to listen to his opinion of where the
child's best interests lie.'

"Lehr, 463 U.S. at 262, 103 S. Ct. 2985 (footnote omitted). See
also M.V.S. v. V.M.D., 776 So. 2d 142, 146 (Ala. Civ. App.
1999) (relying on Lehr for the proposition that a biological
father must have a 'substantial relationship' with a child in
order to have a constitutional right to withhold consent to that
child's adoption).

"Here, the unwed father clearly did not step forward
when he could have. The courts of this State therefore are
under no obligation to accord the father full United States
Constitutional protection of his parental rights. In the eyes of
federal jurisprudence, providing such protection would be
inconsistent with the best interests of the child, given the
father's lack of any substantial relationship with the child.

"The State of Alabama, however, may be free to make a
different judgment as to what would be in the best interests
of children who have been abandoned by their biological
fathers. The State may decide, insofar as state law is
concerned, that the physical abandonment of a child by an
unwed, biological father (in contrast to such father's
24
SC-2025-0655

abandonment of adjudicated paternity rights), should not
prevent such a father from being on an equal presumptive
footing with a fit, custodial mother -- and on better footing
than all other parties, regardless of their historical
relationships with the children -- if and when such a father's
paternity is eventually adjudicated. Indeed, Ex parte D.J.
appears to do that. There is therefore an unavoidable tension
between the holding of Ex parte D.J. and the principles
reflected in Lehr and the state authorities other than Ex parte
D.J. discussed above."

R.K., 843 So. 2d at 777-82 (footnotes omitted).

We find Presiding Judge Moore's critique of Ex parte D.J. and Ex

parte G.C. to be well reasoned, and his analysis is supported by Judge

Murdock's insightful critique of Ex parte D.J. found in R.K. As Presiding

Judge Moore observed, under the current standard, when a court

evaluates whether a putative father has voluntarily forfeited his right to

custody, that court "may consider only evidence of his conduct occurring

after his paternity has been established and must disregard any conduct

occurring from the time the child is born to the date of the adjudication

of paternity." B.F., ___ So. 3d at ___ (Moore, P.J., concurring specially).

That standard places a putative father of a child born out of wedlock in a

stronger position than a presumptive father of a child born in wedlock

who, under Daniels, "must act as a parent toward his child from the time

the child is born, or otherwise forfeit his parental presumption." Id. at
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___. We fail to see how a putative father who knows, or should know,

that he is the father of a child should be placed in a stronger position than

a presumptive father. To borrow a phrase used by Judge Murdock in

R.K., a putative father who "did not step forward when he could have"

should not be on better footing than a presumed father. R.K., 843 So. 2d

at 782. "A child born out of wedlock deserves the love, affection, and care

of both parents, just as a child born in wedlock." B.F., ___ So. 3d at ___

(Moore, P.J., concurring specially). As Presiding Judge Moore argued, a

court should not be required to close its eyes to conduct that occurred

before a court issued an order determining paternity. The father argues

that abandoning Ex parte D.J. and Ex parte G.C. in this regard would

punish him for failing to assert rights that he did not possess. However,

as demonstrated in Presiding Judge Moore's special writing,

"[t]he custodial rights of a putative father do not arise solely
when paternity is judicially established, but, as shown, a
putative father has certain limited custodial rights from the
time the child is born based strictly on his relationship to the
child and any greater inchoate custody rights he may have
ripen once the mother loses custody of the child."

Id. at ___. In short,

"[i]n 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
26
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declaration is not the source of the putative father's rights. A
trial court should not be precluded from considering the
circumstances existing before paternity is judicially
established in deciding whether a putative father should be
entitled to the parental presumption."

Id. at ___.

Accordingly, 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." B.F., ___ So. 3d at

___ (Moore, P.J., concurring specially). We overrule Ex parte D.J. and Ex

parte G.C. insofar as those decisions conflict with the standard that we

state today. In adopting this new standard, we seek to reconcile the

tension discussed above between, on the one hand, Ex parte D.J. and Ex

parte G.C. and, on the other hand, principles reflected in other child-

custody cases. We acknowledge that this Court "strongly believes in the

doctrine of stare decisis and makes every reasonable attempt to maintain

the stability of the law." Foremost Ins. Co., 693 So. 2d at 421. However,

stare decisis is not an " 'inexorable command ,' " Ex parte Capstone Bldg.

Corp., 96 So. 3d at 89 n.8 (citation omitted), and this Court "has had to

27
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recognize on occasion that it is necessary and prudent to admit prior

mistakes …." Foremost Ins. Co., 693 So. 2d at 421. Today, we conclude

that it is necessary and prudent to adopt the new standard outlined

above.

Therefore, we reverse the judgment of the Court of Civil Appeals,

and we remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stewart, C.J., and Shaw, Wise, Sellers, Mendheim, Cook, McCool,

and Parker, JJ., concur.

28