Modification

In order to modify a prior order awarding sole custody to one parent over the other, or joint legal custody with primary placement to one party, the non-primary placement parent must prove that there has been a “material change in circumstances” since the last court order, and that a change of custody would “materially promote the best interests of the child”. This terminology and what it means has been developed as a legal standard known as the McLendon Standard with caselaw illustrating when a parent is able to demonstrate a material change of circumstances in order to win a modification case. The parent attempting to change the prior order must show that the benefit of the change to the child will outweigh the disruption caused by uprooting the child. A mere change of circumstances on the part of the parent will not support a modification. The parent must also show that the change is materially beneficial to the child.

When does the Mclendon
standard not apply?

When the parties hold true joint legal and physical custody, the McLendon standard does not apply. In such cases, the court applies the easier to prove “best interests of the child” standard.

What factors will support a modification under the
Mclendon standard?

It’s important to understand that changes can be both positive and negative: the non-custodial parent must demonstrate either a positive change on their part or a negative change on the part of the custodial parent. The following are a list of factors that may support a modification:

• The custodial parent plans to relocate with the child

  Example: Modification granted where the custodial mother planned to move to Texas and a change of primary custody and placement to the father was found by the court to have little disruptive effect on the child.

• The custodial parent is interfering with the non-custodial parent’s visitation and trying to destroy the parent/child relationship

  Example: Modification granted where custodial mother prevented father from knowing where the child lived and blocked visitation.

• The custodial parent is physically abusive

  Example: Modification granted where custodial father was violent and abusive towards the minor child.

• The custodial parent abuses alcohol or drugs

  Example: Modification granted where mother was arrested for possessing marijuana and admitted in testimony to using and selling drugs.

• The custodial parent is failing to address child’s health issues

  Example: Modification granted where child had severe upper-respiratory problems and mother continued to smoke around the child.

Preparing to present a case for modification

The high burden of proof on a parent seeking to modify a custody order means that you’ll need to be very prepared to effectively present the factors that support modification. The following is a list of the type of information you may want to present in support of your case:

1. The number of residential changes or moves by the custodial parent since the prior custody determination and the relative stability of the parties’ residences

2. The number of changes in child’s place of school or daycare

3. The changes in significant adults in the child’s life, such as repeated marriages or serial relationships

4. The stability of the parents’ employment

5. Each parent’s relative cooperation with visitation schedule and co-parenting decision-making and communication

6. Whether the non-custodial parent has paid child support as ordered

7. Depending on the age of the child, the child’s preferences

8. The state of the child's physical, mental, and emotional health

9. The moral standards of each parent’s home

10. Each parent’s ability to meet the needs of the child

11. Whether there are siblings to the child in either home

12. Convictions for crimes by either parent

13. Whether the child will be able to maintain relationships with other relatives and friends

These are only examples of the many types of evidence the court may consider in a custody modification case. We recommend you discuss your situation with an experienced Alabama child custody attorney to develop a strategy for your case. Our attorneys are happy to answer questions about the legal standard for a custody modification and how your situation may fit.