custody-modification standard in Alabama

2026Rather, those comments and the arguments of the parties indicate that the trial court relied solely on the father's apparent residence in Alabama for the six months preceding his commencement [of the divorce action when it concluded that it had jurisdiction over custody issues under § 30-2-5, Ala. Code 1975].")). 2The record indicates that the circuit court "reset" the case to allow the wife to file either a petition to modify the child's custody based on the custody-modification standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), or a motion pursuant to Rule 60(b), Ala. R.

2025The custody-modification standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), requires that " 'the noncustodial parent seeking a change of custody must demonstrate (1) "that he or she is a fit custodian"; (2) "that material changes which affect the child's welfare have occurred"; and (3) "that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child." Kunkel v. Kunkel, 547 So. 2d 555, 560 (Ala. Civ.

2016The custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), requires that “ ‘the noncustodial parent seeking a change of custody must demonstrate (1) “that he-or she is a fit custodian”; (2) “that material changes which affect the child’s welfare have occurred”; and (3) “that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child.” Kunkel v. Kunkel, 547 So.2d 555, 560 (Ala.Civ.App.1989) (citing, among other cases, Ex parte McLendon, 455 So.2d 863, 865-66 (Ala.1984) (setting forth three factors

2015The custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), requires that “the noncustodial parent seeking a change" of custody must demonstrate (1) ‘that he or she is a fit custodian’; (2) ‘that material changes which affect the child’s welfare have occurred’; and (3) ‘that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child.’ Kunkel v. Kunkel, 547 So.2d 555, 560 (Ala.Civ.App.1989) (citing, among other cases, Ex parte McLendon, 455 So.2d 863, 865-66 (Ala.1984) (setting forth three factors a

2025The custody-modification standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), requires that " 'the noncustodial parent seeking a change of custody must demonstrate (1) "that he or she is a fit custodian"; (2) "that material changes which affect the child's welfare have occurred"; and (3) "that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child." Kunkel v. Kunkel, 547 So. 2d 555, 560 (Ala. Civ.

2025The custody-modification standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), requires that " 'the noncustodial parent seeking a change of custody must demonstrate (1) "that he or she is a fit custodian"; (2) "that material changes which affect the child's welfare have occurred"; and (3) "that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child." Kunkel v. Kunkel, 547 So. 2d 555, 560 (Ala. Civ.

2017See generally B.S.L. v. S.E. , 826 So.2d 890 (Ala. Civ.

2009See generally B.S.L. v. S.E., 826 So.2d 890 (Ala.Civ.App.2002).” C.A.M. v. B.G.H., 869 So.2d 507, 508 (Ala.Civ.App.2003).

2025Analysis The father's sole argument on appeal is that the juvenile court erred by applying the custody-modification standard set forth in Ex parte McLendon, 455 So. 2d 863, 865 (Ala. 1984), in determining whether to modify the child's custody instead of applying the parental-custody presumption and the best-interest standard pursuant to Ex parte Terry, 494 So. 2d 628, 632 (Ala. 1986).

2010At the final hearing in M.B., the mother’s counsel argued that a standard in line with Ex parte Terry, 494 So.2d 628, 632 (Ala.1986), applied, while the grandparents maintained that the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), applied.

2005See O.L.D. v. J.C., supra. The juvenile court’s determination of dependency obviated any necessity to apply the heightened custody-modification standard found in Ex parte McLendon.

2005See O.L.D. v. J.C., supra. The juvenile court’s determination of dependency in this case obviated any necessity to apply the heightened custody-modification standard found in Ex parte McLendon, 455 So.2d 863 (Ala.1984), or to make any additional finding of unfitness as dictated by Ex parte Terry, 494 So.2d 628 (Ala.1986).

2011In Ex parte W.T.M., 851 So.2d 55, 57-58 (Ala.Civ.App.2002), the main opinion stated: “ ‘The rule [established in] Ex parte Perkins[, 646 So.2d 46 (Ala.1994),] is that when the trial court uses an improper, higher standard to deny relief to a party requesting a modification of a prior custody order, the appellate court will not review the evidence under the correct lower standard and direct the award of custody.

2009Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994).

2025See also Ex parte D.B., 255 So. 3d 755, 756 (Ala. 2017) ("[I]t is undisputed that, in order to succeed in her request to modify custody [of a final custodial judgment in a dependency proceeding], the mother was required to meet the well settled custody- modification standard set forth in Ex parte McLendon ....").

2024See Ex parte D.B., 255 So. 3d 755, 756 (Ala. 2017) ('[I]t is undisputed that, in order to succeed in her request to modify custody, the mother was required to meet the well settled custody-modification standard set forth in Ex parte McLendon ....')." K.Y. v. J.S., [Ms. CL-2023-0336, Dec. 8, 2023] ___ So. 3d ___, ___ (Ala. Civ.

2011In Richardson v. Fotheringham, 950 So.2d 339 (Ala.Civ.App.2006), this court stated: “ ‘Because the parties had joint custody, this case is governed by Ex parte Couch, 521 So.2d 987 (Ala.1988), which held that the best-interest standard applies to the modification of an existing joint-custody arrangement.’ Nave v. Nave, 942 So.2d 372, 376 (Ala.Civ.App.2005). “ ‘[Wjhere a trial court bases its custody determination on an improper custody-modification standard, that judgment is due to be reversed.’ Spears v. Wheeler, 877 So.2d 607, 608 (Ala.Civ.App.2003).

2006"Because the parties had joint custody, this case is governed by Ex parte Couch , 521 So.2d 987 (Ala. 1988), which held that the best-interest standard applies to the modification of an existing joint-custody arrangement." Nave v. Nave , 942 So.2d 372 , 376 (Ala.Civ.App. 2005). "[W]here a trial court bases its custody determination on an improper custody-modification standard, that judgment is due to be reversed." Spears v. Wheeler , 877 So.2d 607 , 608 (Ala.Civ.App. 2003).

2018Thus, as already explained, the appropriate custody-modification standard in this case was the "best interests of the child" standard set forth in Couch , supra. The mother contends that the trial court's findings that she had defied its previous judgments and had diminished the child's contact with the father were not sufficient bases for the modification of custody.

2018Thus, as already explained, the appropriate custody-modification standard in this case was the "best interests of the child" standard set forth in Couch , supra. The mother contends that the trial court's findings that she had defied its previous judgments and had diminished the child's contact with the father were not sufficient bases for the modification of custody.

2024See Sims v. Sims, 515 So. 2d 1, 3 (Ala. Civ.

2012See Sims v. Sims, 515 So.2d 1, 2-3 (Ala.Civ.App.1987).

2011App. 2005). "`[W]here a trial court bases its custody determination on an improper custody-modification standard, that judgment is due to be reversed.' Spears v. Wheeler , 877 So. 2d 607 , 608 (Ala. Civ.

2011In Richardson v. Fotheringham, 950 So.2d 339 (Ala.Civ.App.2006), this court stated: “ ‘Because the parties had joint custody, this case is governed by Ex parte Couch, 521 So.2d 987 (Ala.1988), which held that the best-interest standard applies to the modification of an existing joint-custody arrangement.’ Nave v. Nave, 942 So.2d 372, 376 (Ala.Civ.App.2005). “ ‘[Wjhere a trial court bases its custody determination on an improper custody-modification standard, that judgment is due to be reversed.’ Spears v. Wheeler, 877 So.2d 607, 608 (Ala.Civ.App.2003).

2026In their cross-appeal, the parents assert that the circuit court's judgment is not supported by the evidence and that they met their burden to modify the child's custody under the custody-modification standard set out in Ex parte McLendon. " 'When evidence in a child custody case has been presented ore tenus to the [juvenile] court, that court's findings of fact based on that evidence are presumed to be correct.' Ex parte Bryowsky, 676 So. 2d 1322, 1324 (Ala. 1996).

2026In their cross-appeal, the parents assert that the circuit court's judgment is not supported by the evidence and that they met their burden to modify the child's custody under the custody-modification standard set out in Ex parte McLendon. " 'When evidence in a child custody case has been presented ore tenus to the [juvenile] court, that court's findings of fact based on that evidence are presumed to be correct.' Ex parte Bryowsky, 676 So. 2d 1322, 1324 (Ala. 1996).

2011App. 2010) ("Because the April 2007 custody order was a final judgment modifying custody of the *Page 6 child so that the parties had joint legal and physical custody, the custody-modification standard that applied to the mother's request for a review of the April 2007 custody order was the best-interest-of-the-child standard."); and Ex parte Blackstock , 47 So. 3d 801 , 804-05 (Ala. 2009) ("Where, as in the present case, there is a prior judgment awarding joint physical custody, `"the best interests of the child"' standard applies in any subsequent custody-modification proceeding.").

2011See also Scarborough v. Scarborough, 54 So.3d 929, 938 (Ala.Civ.App.2010) (“Because the April 2007 custody order was a final judgment modifying custody of the child so that the parties had joint legal and physical custody, the custody-modification standard that applied to the mother’s request for a review of the April 2007 custody order was the best-interest-of-the-child standard.”); and Ex parte Blackstock, 47 So.3d 801, 804-05 (Ala.2009) (“Where, as in the present case, there is a prior judgment awarding joint physical custody, ‘ “the best interests of the child” ’ standard applies in any su

2011See T.C. and K.C., supra. Because nothing in the record suggests that dependency was an issue below, and because the biological father's custody request was filed after January 1, 2009, it could only have been properly filed in the circuit court.

2011See T.C. and K.C., supra. Because nothing in the record suggests that dependency was an issue below, and because the biological father’s custody request was filed after January 1, 2009, it could only have been properly filed in the circuit court.

2011In Ex parte W.T.M., 851 So.2d 55, 57-58 (Ala.Civ.App.2002), the main opinion stated: “ ‘The rule [established in] Ex parte Perkins[, 646 So.2d 46 (Ala.1994),] is that when the trial court uses an improper, higher standard to deny relief to a party requesting a modification of a prior custody order, the appellate court will not review the evidence under the correct lower standard and direct the award of custody.

2006In *Page 343 Ex parte W.T.M. , 851 So.2d 55 , 57-58 (Ala.Civ.App. 2002), the main opinion stated: "The rule [established in] Ex parte Perkins [, 646 So.2d 46 (Ala. 1994),] is that when the trial court uses an improper, higher standard to deny relief to a party requesting a modification of a prior custody order, the appellate court will not review the evidence under the correct lower standard and direct the award of custody.

2010Ex parte McLendon, 455 So.2d at 866 .” Dean v. Dean, 998 So.2d 1060, 1065 (Ala.Civ.App.2008) (emphasis added).

2010The custody-modification standard set forth in Ex parte McLendon “requires the parent seeking a custody change to demonstrate [ (1) ] that a material change in circumstances has occurred since the previous judgment, [ (2) ] that the child’s best interests will be materially promoted by a change of custody, and [ (3) ] that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody.” Dean v. Dean, 998 So.2d 1060, 1065 (Ala.Civ.App.2008).

2005The juvenile court's determination of dependency obviated any necessity to apply the heightened custody-modification standard found in Ex parte McLendon. ")) and the standard to be applied to custody proceedings after a child's dependency has ceased (the McLendon standard) ( See In re F.W., 681 So.2d 208, 211 (Ala.Civ.App.1996) (stating, in a case involving a custody award in a dependency proceeding with no indication of continuing DHR supervision, that "the McLendon standard applies both to custody questions arising in divorce actions and in juvenile dependency cases such as this one"); cf. E

2005The juvenile court’s determination of dependency obviated any necessity to apply the heightened custody-modification standard found in Ex parte McLendon.”)) and the standard to be applied to custody proceedings after a child’s dependency has ceased (the McLendon standard) (see In re F.W., 681 So.2d 208, 211 (Ala.Civ.App.1996) (stating, in a case involving a custody award in a dependency proceeding with no indication of continuing DHR supervision, that “the McLendon standard applies both to custody questions arising in divorce actions and in juvenile dependency cases such as this one”); cf. Ex

2005The juvenile court's determination of dependency obviated any necessity to apply the heightened custody-modification standard found in Ex parte McLendon. ")) and the standard to be applied to custody proceedings after a child's dependency has ceased (the McLendon standard) ( See In re F.W., 681 So.2d 208, 211 (Ala.Civ.App.1996) (stating, in a case involving a custody award in a dependency proceeding with no indication of continuing DHR supervision, that "the McLendon standard applies both to custody questions arising in divorce actions and in juvenile dependency cases such as this one"); cf. E

2005The juvenile court’s determination of dependency obviated any necessity to apply the heightened custody-modification standard found in Ex parte McLendon.”)) and the standard to be applied to custody proceedings after a child’s dependency has ceased (the McLendon standard) (see In re F.W., 681 So.2d 208, 211 (Ala.Civ.App.1996) (stating, in a case involving a custody award in a dependency proceeding with no indication of continuing DHR supervision, that “the McLendon standard applies both to custody questions arising in divorce actions and in juvenile dependency cases such as this one”); cf. Ex

2005The juvenile court's determination of dependency obviated any necessity to apply the heightened custody-modification standard found in Ex parte McLendon. ")) and the standard to be applied to custody proceedings after a child's dependency has ceased (the McLendon standard) ( See In re F.W., 681 So.2d 208, 211 (Ala.Civ.App.1996) (stating, in a case involving a custody award in a dependency proceeding with no indication of continuing DHR supervision, that "the McLendon standard applies both to custody questions arising in divorce actions and in juvenile dependency cases such as this one"); cf. E

2005The juvenile court’s determination of dependency obviated any necessity to apply the heightened custody-modification standard found in Ex parte McLendon.”)) and the standard to be applied to custody proceedings after a child’s dependency has ceased (the McLendon standard) (see In re F.W., 681 So.2d 208, 211 (Ala.Civ.App.1996) (stating, in a case involving a custody award in a dependency proceeding with no indication of continuing DHR supervision, that “the McLendon standard applies both to custody questions arising in divorce actions and in juvenile dependency cases such as this one”); cf. Ex

2002See Grant v. Grant, 820 So.2d 824 (Ala.Civ.App.2001) (distinguishing between a temporary-custody award and a pendente lite custody award and holding that the entry of a pendente lite order does not shift the McLendon burden of proof); Sims v. Sims, 515 So.2d 1 (Ala.Civ.App.1987) (holding that an award of pendente lite custody to one parent during the pendency of a hearing does not activate McLendon ).

2002See Grant v. Grant, 820 So.2d 824 (Ala.Civ.App.2001) (distinguishing between a temporary-custody award and a pendente lite custody award and holding that the entry of a pendente lite order does not shift the McLendon burden of proof); Sims v. Sims, 515 So.2d 1 (Ala.Civ.App.1987) (holding that an award of pendente lite custody to one parent during the pendency of a hearing does not activate McLendon).

2011In Richardson v. Fotheringham, 950 So.2d 339 (Ala.Civ.App.2006), this court stated: “ ‘Because the parties had joint custody, this case is governed by Ex parte Couch, 521 So.2d 987 (Ala.1988), which held that the best-interest standard applies to the modification of an existing joint-custody arrangement.’ Nave v. Nave, 942 So.2d 372, 376 (Ala.Civ.App.2005). “ ‘[Wjhere a trial court bases its custody determination on an improper custody-modification standard, that judgment is due to be reversed.’ Spears v. Wheeler, 877 So.2d 607, 608 (Ala.Civ.App.2003).

2010See Ex parte Couch, 521 So.2d 987 (Ala.1988); Richardson v. Fotheringham, 950 So.2d 339, 342 (Ala.Civ.App.2006) (quoting Nave v. Nave, 942 So.2d 372, 376 (Ala.Civ.App.2005)) (“ ‘Because the parties had joint custody, this case is governed by Ex parte Couch, 521 So.2d 987 (Ala.1988), which held that the best-interest standard applies to the modification of an existing joint-custody arrangement.’ ”).

2010In asserting that second argument, the mother relies on C.A.M. v. B.G.H., 869 So.2d 507 (Ala.Civ.App.2003), in which a trial court had modified its previous award of primary physical custody to the mother to award primary physical custody to the father in response to the father’s claim that the mother was sexually abusing the child in that case.

2010As a result of this court’s “inability to determine the standard” that the trial court had applied in that case, combined with “the particularly close facts” of that case, we remanded the case “to allow the trial court to evaluate the evidence in accordance with the standard set forth in Ex parte McLendon." C.A.M., 869 So.2d at 508 .

2026See Elizabeth Homes, L.L.C. v. Cato, 968 So. 2d 1, 8 (Ala. 2007) ("In determining the nature of a cause of action, [an appellate c]ourt looks to allegations in the body of the complaint, not the caption or label the party applies."). 3 CL-2025-0966 Georgia after October 2024 and that they had resided there until they relocated to Philadelphia in April 2025.

2016See Watters v. Watters, 918 So.2d 913, 916 (Ala.Civ.App.2005) (indicating that a parent seeking modification of a joint-custody arrangement is not required to meet the standard set out in Ex parte McLendon).