12th Oct 2014

Modifying Physical Custody

What is the McLendon standard and why does it matter?

The burden of proof in modifying your child custody order is based on the 1984 case of Ex parte McClendon. This case held that in order to change physical custody of a minor child, you must prove that:

1) There has been a material change in circumstances has occurred since the previous custody order.
2) The child’s best interest will be materially promoted by a change in custody.
3) The benefits of the change in physical custody will be more than offset by the inherent disruption to the child by the change in physical custody.

The trial court is given great discretion in making the determination of a change in custody.

In order to change the physical custody of the minor child, each of the above factors must be addressed and evidence submitted to the court.

Modifying Legal Custody and Visitation

When does the McLendon standard apply?

The McLendon standard applies to the change in physical custody of the children. Changes in legal custody (the right to make legal decisions) and visitation should be decided on the best interest of the child standard (see Ex parte Couch, 521 So.2d 987 (Ala.1988) and West v. Rambo 786 So.2d 1138 (Ala. Civ. App. 2000)).

This standard allows a party to show that:

1) There has been a material change in circumstances has occurred since the previous order.
2) The child’s best interest will be materially promoted by the requested change.

There is no requirement that the party requesting the change show that there is a benefit that would outweigh any disruptive effect of the change. This may seem like a minor difference from the McLendon standard, but the effect is to set a much lower bar for obtaining a change in the court’s previous order if you are not seeking a change in physical custody.

Modifications of Child Support

In order to change child support (by itself – not in conjunction with requesting a change in visitation or custody) is governed by Rule 32(A)(3) of the Alabama Rules of Judicial Administration. Essentially, the court can modify your child support obligation if there is a substantial and continuing change in circumstances that would result in a 10% change from your current obligation. However the court has the discretion to award or deny the modification regardless of the 10% variation.

No matter what your divorce, child custody, child support or visitation issue, you should discuss your options with a qualified divorce lawyer to protect your rights.

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