Dennis and Allison Price were divorced in 2008. The final divorce decree awarded custody of the couple’s then two-year-old son, H. P., to the maternal grandparents, Ronald and Dana Wingo. Ten months later, Dennis Price hereinafter, “Price” filed the instant action to change custody, claiming that he has remarried and can now provide a stable home life for the child. After a final hearing, the trial court denied Price’s request for a modification of child custody and ordered that H. P. remain with the grandparents. Price appeals. As Price acknowledges, this case is controlled by Durden v. Barron ,1 which provides: Once a third party has been awarded permanent custody of a child in a court proceeding to which a parent was a party, the roles of the parent and the third party reverse; that is, the third party now has the prima facie right to custody as against the parent who has lost the right to custody. The parent can regain custody upon showing by clear and convincing evidence his or her present fitness as a parent and that it is in the best interest of the child that custody be changed.2 Here, the trial court found that Price had satisfied the first prong of the Durden test, by showing clear and convincing evidence of his present fitness as a parent. However, the trial court also concluded that Price had failed to show by clear and convincing evidence that a change of custody is in the child’s best interest, noting that the primary change of circumstances is Price’s short-lived remarriage.
Price relies on Mallette v. Mallette 3 to argue that the trial court erred in considering evidence related to matters that transpired prior to the 2008 custody award, including testimony about Price’s two prior marriages. Price’s reliance on Mallette is misplaced. That case, which involved a change of custody dispute between divorced parents, held that since the issue of fitness concerned present fitness, the conduct of the parents before the divorce was immaterial and evidence as to unfitness had to be confined to matters transpiring subsequent to the divorce.4
