Modifying child custody involves more than most parents understand. In cases where parents have joint legal custody and one of those parents desires to change custody, the burden of proof falls upon him or her. That proof must be presented before the Court.

McLendon Standard

The 1984 case of Ex Parte McLendon set the standard in Alabama for modification of child custody. The standard requires that the parent who is seeking a modification or change in custody must show proof of the following:

  1. That a material change in circumstances has occurred since the initial or previous judgment regarding custody in the case;
  2. That the child’s best interest will be promoted materially by a change in custody; and
  3. That the benefits of the custody change will more than balance the intrinsic disruptive effects which may result from a change in custody.

The Court wishes to lessen the disruption caused by changes in custody, so the McLendon Standard is a strict standard. Alabama judges deduce that stability is innately more beneficial to a child than change. Therefore, the parent who wishes to modify custody must show that the child would be better off with a custody change AND also show that the betterment of the child’s situation will overcome the disruption that will certainly occur with a change in custody.

The Court’s Decision

A judge will hear the evidence regarding a modification in custody; then he or she rules with a final decision. In essence, a judge in Alabama is given significant discretion in making his or her rulings regarding custody and change in custody cases. That judge’s decision is presumed correct under ore tenus, which documents that the judge in the matter was able to see and hear witnesses and to judge their demeanor, truthfulness, and knowledge. Therefore, presumably, the judge is held to be in the best possible position to make the rulings concerning custody and custody modifications. To overturn a judge’s decision regarding custody, the person appealing must show that evidence supports the decision or that the trial court abused its discretion.

Judge’s Considerations in Custody Modification Cases

A judge in a child custody modification case will evaluate several factors in making his or her decision. Some of the common factors include, but are not limited to, the following:

  • The home environments offered by the parties
  • The nature and relationship of the parties to the people around them and in their lives,
  • The child’s needs, age, and overall health
  • The parties’ ages
  • The parties’ character and stability and their mental and physical health
  • The personal relationships between the child and each parent,
  • The interference by either parent with the relationship between the other parent and child,
  • The wishes of the child, if relevant

Other evidence, depending on the nature and facts for a case, may be considered by the court.