¶2I concur in the result, but only because the law does provide as follows:
Ex parte Terry, 494 So.2d 628, 632 (Ala. 1986) (quoting Ex parteMathews, 428 So.2d 58, 59 (Ala. 1983)).¶3 " 'The prima facie right of a natural parent to the custody of his or her child, as against the right of custody in a nonparent, is grounded in the common law concept that the primary parental right of custody is in the best interest and welfare of the child as a matter of law. So strong is this presumption, absent a showing of voluntary forfeiture of that right, that it can be overcome only by a finding, supported by competent evidence, that the parent seeking custody is guilty of . . . 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. Hanlon v.Mooney, 407 So.2d 559 (Ala. 1981).' "
¶4The record does not show that the trial court made this finding, which the law requires; therefore, I agree that the Court of Civil Appeals properly reversed the judgment and remanded the case. On remand, however, the trial court can still make a finding, if it is supported by the evidence, that will support its original award of custody.