On March 27, 2026, the Alabama Supreme Court handed down a decision that quietly—but significantly—changed the landscape for unmarried fathers across the state. If you’re a father who isn’t on the birth certificate yet, if you’ve had an on-again/off-again relationship with your child’s mother, or if paternity simply hasn’t been formally established, this ruling affects you directly. And not in the way you might hope.
What Happened: Ex parte C.D. and Why It Matters
In Ex parte C.D., SC-2025-0655 (Ala. 2026), the Alabama Supreme Court confronted a question that family law attorneys have wrestled with for decades: when evaluating whether an unmarried father voluntarily forfeited his presumptive right to custody of his child, what period of time can a court actually look at?
Under the old rule—established in Ex parte D.J., 645 So. 2d 303 (Ala. 1994), and reinforced in Ex parte G.C., 924 So. 2d 651 (Ala. 2005)—the answer was narrow: courts could only examine a father’s conduct after his paternity had been formally adjudicated by a court. Everything before that legal declaration? Off limits. Untouchable. Invisible.
The Alabama Supreme Court just threw that rule out.
The new standard: the relevant period begins when a putative father knows, or should know, that he is the child’s father. Courts can now look at the full picture of a father’s conduct from the moment awareness was reasonably expected—regardless of whether a paternity order existed.
Understanding the Stakes: The Parental Presumption and What It Protects
To appreciate why this ruling matters, you need to understand what’s at stake when the parental presumption applies—or doesn’t.
Under Ex parte Terry, 494 So. 2d 628 (Ala. 1986), a natural parent has a prima facie right to the custody of his or her child. In practical terms, this means that in a dispute between a biological parent and a non-parent—a grandparent, a family friend, a foster custodian—the parent starts with a presumptive advantage. The non-parent can’t simply walk into court and argue that they’ve done a better job raising the child. The bar is high. The law starts with the parent.
But that presumption isn’t unconditional. It disappears in two situations:
- Voluntary forfeiture — the parent voluntarily relinquished custody
- Prior decree — a court previously removed the child from the parent’s custody and placed the child with a non-parent
When either exception applies, the game changes dramatically. The father no longer benefits from the parental presumption. Instead, he faces the much steeper burden established in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984): he must prove not only that a change in custody would be in the child’s best interest, but that the benefit would more than offset the disruption of uprooting the child from an established home. That is a hard standard to meet. Fathers lose under that standard every day.
The difference between the Terry standard and the McLendon standard isn’t procedural. It’s often outcome-determinative.
The Old Rule: A Shield That Rewarded Inaction
The logic behind the old D.J./G.C. framework had a certain legal symmetry to it. Under Alabama common law, a mother historically held exclusive custody rights to a child born out of wedlock. A putative father—one whose paternity hadn’t been legally established—had only secondary, inchoate rights. So, the reasoning went: how can a man forfeit rights he doesn’t yet legally possess?
The Court of Civil Appeals applied that logic faithfully in this case, concluding that because the father hadn’t been adjudicated the legal father until June 7, 2024, his conduct before that date was irrelevant to whether he had voluntarily forfeited his rights. He had filed a paternity petition a few months earlier. Under the old framework, that was enough to preserve his parental presumption—regardless of what the preceding three years looked like.
The problem, as Presiding Judge Moore argued in a scathing special concurrence joined by every judge on the Court of Civil Appeals, is that this framework created an anomaly: it gave an unmarried father stronger protection than a married, presumed father. Under Daniels v. Trawick, 232 Ala. 466 (1936), a married father can forfeit his parental presumption by being inattentive and indifferent from the child’s birth. Under the old rule, an unmarried father could be equally absent—moving to another state, making no contact, providing nothing—and still walk into court years later to claim the full benefit of the parental presumption simply because his paternity had never been formally adjudicated.
That disparity, the Supreme Court concluded, was indefensible.
The New Rule: Know Your Child, Claim Your Rights
The Alabama Supreme Court agreed with Presiding Judge Moore. It overruled Ex parte D.J. and Ex parte G.C. to the extent those cases limited courts to examining only post-adjudication conduct.
The new rule is straightforward in its framing, but loaded with consequence:
“The relevant period begins when a putative father knows, or should know, of his paternity of a child born out of wedlock.”
That phrase—knows, or should know—is where unmarried fathers need to pay close attention.
This isn’t a rule that waits for certainty. It doesn’t require a DNA test or a court order to start the clock. If the circumstances were such that a reasonable person in your position would have understood he might be the father, Alabama courts can now look at how you behaved from that point forward. The question a court will ask is not “when were you legally declared the father?” It’s “when did you know—or when should you have known?”
The Court also grounded the new rule in constitutional principle, drawing on the United States Supreme Court’s decision in Lehr v. Robertson, 463 U.S. 248 (1983), which held that parental rights do not arise from biology alone. They arise from relationship—from commitment, from showing up, from shouldering responsibility. A biological connection is an opportunity, Lehr teaches, not a guarantee. Seize it, and the Constitution protects you. Ignore it, and you can’t expect the law to carry you.
What This Looks Like in Practice: Four Scenarios That Could Cost You
1. You Knew About the Pregnancy and Did Nothing
If you were aware—or should have been—that your child was born, and you made no effort to establish paternity, seek visitation, or engage as a parent, a court can now weigh that entire period of inaction. Filing a paternity petition three years later doesn’t erase what happened before.
2. You Were Incarcerated or in Rehab
The facts in Ex parte C.D. are instructive here. The father was incarcerated shortly after the child’s birth and didn’t complete a substance-abuse program until late 2023. The juvenile court found he knew or should have known he was the father early on—and it assessed his conduct from that point. The Supreme Court’s new rule says courts can do exactly that. Incarceration doesn’t stop the clock.
3. The Child Was Placed with a Non-Parent and You Waited to Act
Once a dependency proceeding places your child with a third party—a family friend, grandparents, a non-relative—every day you wait without asserting your rights is a day that may be counted against you. Under the new rule, your inaction before a paternity order is fair game. The 2021 dependency order in B.F. v. C.D. placed the child with a family friend. The father didn’t petition for custody until February 2024. That gap matters now.
4. You Assumed the Mother’s Custody Rights Shielded You from Responsibility
Some fathers have operated under the assumption that because the mother had superior custody rights, their own passivity was legally neutral. The Supreme Court has now explicitly rejected that reasoning. A putative father has certain limited custodial rights from the moment of birth—including the right to seek visitation, the right to legitimate the child, and the right to petition for custody. Choosing not to exercise those rights is a choice the court can now weigh.
What This Does NOT Mean
This ruling doesn’t eliminate the parental presumption for unmarried fathers. It doesn’t mean that a father who was present, engaged, and doing the right things loses his rights because paternity wasn’t formally established. The new standard asks courts to examine actual conduct during the relevant period—which cuts both ways.
A father who knew about his child, pursued a relationship, attempted to legitimate, paid support, stayed engaged—that father can point to all of that as evidence that he did not forfeit his presumptive right. The new rule gives courts the full picture. If your picture is a good one, that works in your favor.
The rule also doesn’t retroactively undo existing custody arrangements that were correctly decided under prior law. But going forward, in any case where a court must decide whether an unmarried father is entitled to the parental presumption, this is the standard.
For the Lawyers: Practical Takeaways
The doctrinal shift here is meaningful and clean. The Court has resolved the irreconcilable tension identified in R.K. v. R.J., 843 So. 2d 774 (Ala. Civ. App. 2002) and left unresolved for over two decades. A few notes for practitioners:
- Discovery and evidence at the trial level matters more now. The factual record on the father’s knowledge—and the timeline of what he knew and when—is now central to the threshold question of which standard applies. Develop that record early.
- The “knows or should know” standard will be litigated. Courts will need to assess credibility on this question regularly. Think carefully about how you frame your client’s knowledge (or lack of knowledge) of paternity and preserve the record accordingly.
- The forfeiture analysis and the prior-decree exception are now on equal footing. Before Ex parte C.D., the prior-decree analysis under G.C. was also limited to post-adjudication periods. Both exceptions can now be evaluated from the moment the father knew or should have known of his paternity.
- Daniels v. Trawick is back in the conversation. The Court explicitly invoked the 1936 Daniels standard, which permits forfeiture based on indifference and inattention from birth. Counsel should be prepared to argue Daniels in cases involving unmarried fathers under the new framework.
- The McLendon burden, if it applies, remains formidable. Winning the threshold question doesn’t end the analysis. If forfeiture is established, the father now needs to clear McLendon—material promotion plus more-than-offsetting the disruption. Don’t let a favorable threshold ruling lull you into underestimating what comes next.
The Bottom Line for Fathers
If you have a child—or believe you may have a child—and you are not actively engaged in that child’s life, you are accumulating a record that a court can now use against you.
Waiting until things settle down, waiting until you have steady income, waiting until the relationship with the mother improves, waiting until you’re out of legal trouble—none of that stops the clock under Alabama’s new standard. The law is now watching from the moment you knew, or should have known.
This doesn’t mean you’ve lost your chance. But the longer you wait, the harder the road gets. The parental presumption is a powerful legal tool. It is not, however, a vending machine you can walk up to after years of absence and expect to dispense your rights on demand.
If your child’s paternity has not been established, establish it. If you don’t have a visitation order, get one and follow it. If your child is in someone else’s custody and you want to change that, talk to a family law attorney—now, not after you’ve waited another year.
The Alabama Supreme Court just made clear that inaction is its own kind of choice. Courts are now authorized to treat it as one.
Frequently Asked Questions
Does this ruling affect custody cases that are already decided? No. Ex parte C.D. establishes a prospective standard. It will govern how courts evaluate new custody claims going forward, but it does not overturn previously entered custody orders.
What if I didn’t know I had a child? The standard requires that the father knew or should have known. Genuine lack of knowledge—where no reasonable person in your position would have been aware—would argue against applying the forfeiture period from birth. This is a fact-intensive question that an attorney can help you evaluate.
Does establishing paternity automatically give me custody? No. A paternity adjudication establishes legal fatherhood. It does not, by itself, modify a custody order. After paternity is established, you would need to petition the court for custody or visitation, and the court would evaluate that petition under the applicable standard.
What is the McLendon standard and why does it matter? The McLendon standard requires a parent seeking to modify a non-parent’s custody to prove (1) that the change would materially promote the child’s welfare, and (2) that the benefit would more than offset the inherent disruption of uprooting the child. It is a higher bar than the simple Terry parental presumption. Whether your case is governed by Terry or McLendon can determine the outcome.
I was in jail when my child was born. Am I automatically considered to have forfeited my rights? Not automatically. The court must examine your conduct from the time you knew or should have known of your paternity. Incarceration is a circumstance the court will consider, but it is not a per se forfeiture. Courts look at the totality of the conduct—including efforts made despite incarceration, like correspondence, support, or paternity petitions filed upon release.
This article is provided for general informational purposes and does not constitute legal advice. Every custody case involves unique facts that can significantly affect the legal outcome. If you have questions about your rights as a parent in Alabama, you should consult with a qualified family law attorney.
Foxtrot Family Law represents parents in custody, paternity, and modification matters across Alabama. Contact us to discuss your situation.
Tags: Alabama custody law, unmarried fathers rights Alabama, putative father custody, Ex parte C.D. 2026, parental presumption Alabama, Alabama family law 2026, child custody modification Alabama, paternity rights Alabama, Foxtrot Family Law
