P.F.-T. v. M.T., [Ms. 2210366, Jan. 13, 2023] __ So. 3d __ (Ala. Civ. App. 2023). The court (Moore, Edwards, and Fridy, JJ., concur; Thompson, P.J., dissents, which Hanson, J., joins) affirms the Montgomery Circuit Court’s judgment divorcing the parties in a same-sex marriage and denying the spouse an award of custody of M.A.T. The spouse relied on the presumption of paternity set forth in § 26-17-204(5), Ala. Code 1975 – “(5) while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child or otherwise openly holds out the child as his natural child and establishes a significant parental relationship with the child by providing emotional and financial support for the child.” She argued that, “in light of Obergefell v. Hodges, 576 U.S. 644 (2015), § 26-17-204 is unconstitutional because it does not apply to women in same-sex marriages and should be judicially amended to extend a presumption of maternity to her.” Ms. *7.
The court declines to reach the spouse’s argument:
It is axiomatic that “[t]his Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992). To preserve a challenge to the constitutionality of a statute, an appellant must have specified to the trial court which statute he or she is challenging and have made specific arguments to the trial court explaining which constitutional rights the statute violates and how it violates them. See Ex parte J.W.B., 230 So. 3d 783, 790-92 (Ala. 2016). See also Alabama Power Co. v. Turner, 575 So. 2d 551, 553 (Ala. 1991) (“[T]o challenge the constitutionality of a statute, an appellant must identify and make specific arguments regarding what specific rights it claims have been violated.”).
Presiding Judge Thompson’s dissent joined by Judge Hanson concludes:
The result of applying the provision found in § 26-17-106 to the language of § 26-17-204 is to make that section gender neutral. Section 26-17-106 provides ample authority for the trial court to have determined the maternity of the child in this case. Because the trial court stated in its final judgment that there was “no legal authority to award the non-biological mother custody rights[,]” I would reverse the trial court’s judgment as to that finding and remand this case to the trial court to apply the AUPA in a gender-neutral manner to determine if the spouse carried her burden of proving parentage under § 26-17-204(a)(4), Ala. Code 1975, or under § 26-17-204(a)(5), Ala. Code 1975.