## Facts

- The parents divorced in 1993, and the mother received custody of their minor daughter.
- The mother entered a same-sex relationship with G.S. and lived with G.S. and the child; the mother and G.S. shared a bedroom.
- The father asserted the mother had agreed the relationship would be kept discreet and not presented to the child as romantic.
- The father learned the mother and G.S. shared a bed, sometimes with the child sleeping in it, and showed romantic affection (including kissing) in the child’s presence.
- The father reported the child made comments suggesting same-sex marriage and engaged in conduct the father viewed as sexually inappropriate (grabbing the stepmother’s breast).
- The mother and G.S. testified they were committed “life partners,” that G.S. functioned in a step-parent role, and that the child was told their relationship resembled the father’s relationship with the stepmother.
- The mother presented expert testimony that children raised by same-sex couples show no meaningful psychological differences and that the relationship benefited the child.
- The father presented testimony from a pastoral counselor raising concerns about possible sexual abuse; the child was evaluated, and a guardian ad litem participated.

## Issues

1. Whether the appellate court erred by reversing a trial court’s custody modification that awarded custody to the father after an ore tenus hearing.
2. Under Ex parte McLendon, whether a trial court may consider the custodial parent’s openly conducted same-sex relationship as part of the “materially promote” analysis without requiring a separate finding that the relationship had a “substantial detrimental effect” on the child.
3. Whether the appellate court improperly reweighed evidence and credibility determinations reserved to the trial court.

## Decision

- The Alabama Supreme Court reversed the Court of Civil Appeals and remanded, restoring the trial court’s judgment awarding custody to the father.
- The Court held the appellate court improperly substituted its view of the facts for the trial court’s ore tenus findings.
- The Court rejected the appellate court’s approach that effectively required proof and an express finding of a “substantial detrimental effect” as a prerequisite to considering the mother’s relationship in the custody-modification analysis.
- The Court concluded the record permitted the trial court to find the father met the McLendon burden and that the custody change would materially promote the child’s welfare.

## Legal Principles

- Under Ex parte McLendon, a parent seeking custody modification must prove a material change in circumstances and that the change will materially promote the child’s welfare, with benefits outweighing the disruption from changing custody.
- In custody matters tried ore tenus, the trial court’s findings receive a strong presumption of correctness and are reversed only if plainly and palpably wrong.
- A trial court may weigh the totality of the custodial environment—including living arrangements and how adult relationships are conducted in the child’s presence—within the McLendon framework.
- Appellate courts may not impose additional threshold elements that alter the McLendon test or reweigh conflicting evidence, including expert testimony and guardian ad litem input.

## Conclusion

The Alabama Supreme Court reinstated the trial court’s custody modification to the father, holding that the trial court’s ore tenus findings were entitled to deference and that the appellate court erred by requiring a separate “substantial detriment” finding before the mother’s openly conducted same-sex relationship could be considered under the McLendon custody-modification standard.


Ex parte J.M.F., 730 So. 2d 1190 (Ala. 1998)