Disputes over child custody are always difficult. Whether it is the product of a divorce, a DHR case, or a battle with another relative, ultimately the court will be held to make a decision as to who has custody of the minor child or children, and usually only one party is happy with the court’s decision. Once that final decision is made, the second child custody dispute can be even harder because of what Alabama practitioners call the McClendon standard.
In Ex Parte McClendon, 455 So.2d 863 (Ala. 1984) the Alabama Supreme Court found that custody of a child after a court case has a very permanent element. In McClendon, a mother had given temporary custody of her child to the paternal grandparents. Three years later she wanted custody returned to her, claiming it was in the best interests of the minor child to be returned to the mother.
The Alabama Supreme Court admitted that the Mother was in a better position. The Mother had remarried, and had enough financial resources to care for the child. However, the court also found that a parent’s right to care for their child may be tainted based upon a prior order transferring custody, voluntarily or otherwise. Instead, the Court determined that “the parent will not be permitted to reclaim custody of the child, unless she can show that a change of custody will materially promote her child’s welfare.” McClendon, at 865. Prior to McClendon, a parent only had to show a change in circumstances.
This “materially promotes” language is the part that makes an attempt to modify a prior custody order difficult. If all parties are doing well after a custody order, how can you say there is enough change to “materially promote” the welfare of the child? Since McClendon was decided in 1984, the appellate courts in Alabama have heard similar cases nearly 600 times, and continue to uphold the same standard of changing custody as stated in McClendon.
While there is no clear standard as to what a court would find as a high enough burden, caring for a child’s best interest should always be at the forefront. If you have concerns about whether you should pursue a change in a prior child custody order, it is always best to consult an attorney to see how they think you should proceed.
(David King is an Attorney with Williams & Associates, LLC. As a regular part of his practice he deals with matters involving child custody on a near daily basis.)
