McLendon standard in Alabama

2025To meet the McLendon standard, a noncustodial parent "must prove to the satisfaction of the trial court (1) that the circumstances upon which the original judgment was based have changed, (2) that he or she is fit to act as a custodian for the child, and (3) that ' "the positive good brought about by the modification ... more than offset[s] the inherently disruptive effect caused by uprooting the child." ' Ex parte McLendon, 455 So.2d 863, 865 (Ala. 1984) (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala. Civ.

2025To meet the McLendon standard, a noncustodial parent "must prove to the satisfaction of the trial court (1) that the circumstances upon which the original judgment was based have changed, (2) that he or she is fit to act as a custodian for the child, and (3) that ' "the positive good brought about by the modification ... more than offset[s] the inherently disruptive effect caused by uprooting the child." ' Ex parte McLendon, 455 So.2d 863, 865 (Ala. 1984) (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala. Civ.

2025To meet the McLendon standard, a noncustodial parent "must prove to the satisfaction of the trial court (1) that the circumstances upon which the original judgment was based have changed, (2) that he or she is fit to act as a custodian for the child, and (3) that ' "the positive good brought about by the modification ... more than offset[s] the inherently disruptive effect caused by uprooting the child." ' Ex parte McLendon, 455 So.2d 863, 865 (Ala. 1984) (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala. Civ.

2025To meet the McLendon standard, a noncustodial parent "must prove to the satisfaction of the trial court (1) that the circumstances upon which the original judgment was based have changed, (2) that he or she is fit to act as a custodian for the child, and (3) that ' "the positive good brought about by the modification ... more than offset[s] the inherently disruptive effect caused by uprooting the child." ' Ex parte McLendon, 455 So.2d 863, 865 (Ala. 1984) (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala. Civ.

2023See, e.g., Ex parte Cleghorn, 993 So. 2d 462, 468 (Ala. 2008) ("The burden imposed by the McLendon standard is typically a heavy one, recognizing the importance of stability …."); Ex parte J.P., 641 So. 2d 276, 279 (Ala. 1994) (referring to the burden of proof under the standard set out in Ex parte McLendon as "heavy"); Rogers v. Rogers, 579 So. 2d 1353, 1354 (Ala. Civ.

2023See, e.g., Ex parte Cleghorn, 993 So. 2d 462, 468 (Ala. 2008) ("The burden imposed by the McLendon standard is typically a heavy one, recognizing the importance of stability …."); Ex parte J.P., 641 So. 2d 276, 279 (Ala. 1994) (referring to the burden of proof under the standard set out in Ex parte McLendon as "heavy"); Rogers v. Rogers, 579 So. 2d 1353, 1354 (Ala. Civ.

2001Scacca v. Scacca, 694 So.2d 1 (Ala.Civ.App.1997); see also Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996) (holding that McLendon standard applied where agreement between the parties granted the parties joint legal custody of the child, with physical custody to the mother, and agreement was adopted by the trial court).

2001Scacca v. Scacca, 694 So.2d 1 (Ala.Civ.App.1997); see also Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996) (holding that McLendon standard applied where agreement between the parties granted the parties joint legal custody of the child, with physical custody to the mother, and agreement was adopted by the trial court).

2005The McLendon standard applies when (1) there has been “a voluntary forfeiture of custody or a prior decree removing custody from the natural parent and awarding it to a nonparent,” 455 So.2d at 865 , and (2) the transfer of custody “ ‘has been acted upon ... to the manifest interest and welfare of the child.’ ” Id. (quoting Greene v. Greene, 249 Ala. 155, 157 , 30 So.2d 444, 445 (1947)).

2005The McLendon standard applies when (1) there has been “a voluntary forfeiture of custody or a prior decree removing custody from the natural parent and awarding it to a nonparent,” 455 So.2d at 865 , and (2) the transfer of custody “ ‘has been acted upon ... to the manifest interest and welfare of the child.’ ” Id. (quoting Greene v. Greene, 249 Ala. 155, 157 , 30 So.2d 444, 445 (1947)).

2018On appeal, the father first argues that the Coffee Circuit Court erred by applying the custody-modification standard set out in Ex parte McLendon , 455 So.2d 863 (Ala. 1984) ("the McLendon standard"), rather than the best-interest standard set out in Ex parte Couch , 521 So.2d 987 , 989 (Ala. 1988).

2018On appeal, the father first argues that the Coffee Circuit Court erred by applying the custody-modification standard set out in Ex parte McLendon , 455 So.2d 863 (Ala. 1984) ("the McLendon standard"), rather than the best-interest standard set out in Ex parte Couch , 521 So.2d 987 , 989 (Ala. 1988).

2015See Sims v. Sims, 515 So.2d 1, 3 (Ala.Civ.App.1987) (holding that pen-dente lite orders “do not activate the McLendon rule”).

2015See Sims v. Sims, 515 So.2d 1, 3 (Ala.Civ.App.1987) (holding that pen-dente lite orders “do not activate the McLendon rule”).

2023See, e.g., Ex parte Cleghorn, 993 So. 2d 462, 468 (Ala. 2008) ("The burden imposed by the McLendon standard is typically a heavy one, recognizing the importance of stability …."); Ex parte J.P., 641 So. 2d 276, 279 (Ala. 1994) (referring to the burden of proof under the standard set out in Ex parte McLendon as "heavy"); Rogers v. Rogers, 579 So. 2d 1353, 1354 (Ala. Civ.

2023See, e.g., Ex parte Cleghorn, 993 So. 2d 462, 468 (Ala. 2008) ("The burden imposed by the McLendon standard is typically a heavy one, recognizing the importance of stability …."); Ex parte J.P., 641 So. 2d 276, 279 (Ala. 1994) (referring to the burden of proof under the standard set out in Ex parte McLendon as "heavy"); Rogers v. Rogers, 579 So. 2d 1353, 1354 (Ala. Civ.

2018App. 2004) (stating that any error in applying the Ex parte McLendon , 455 So.2d 863 (Ala. 1984), standard to a custody-modification petition was harmless error because the trial court's determination that the petitioner had satisfied the McLendon standard necessarily meant that the petitioner had met the less stringent best-interests standard); and I.M. v. J.P.F. , 668 So.2d 843 , 845 (Ala. Civ.

2018App. 2004) (stating that any error in applying the Ex parte McLendon , 455 So.2d 863 (Ala. 1984), standard to a custody-modification petition was harmless error because the trial court's determination that the petitioner had satisfied the McLendon standard necessarily meant that the petitioner had met the less stringent best-interests standard); and I.M. v. J.P.F. , 668 So.2d 843 , 845 (Ala. Civ.

2004Because I find that standard to be one that is not only not expressed in Ex parte McLendon, but is in fact inconsistent with the application of the McLendon standard in many cases, see Smith, 865 So.2d at 1211-13 (Murdock, J., concurring in the result), I cannot fully concur in the analysis of the main opinion.

2004Because I find that standard to be one that is not only not expressed in Ex parte McLendon, but is in fact inconsistent with the application of the McLendon standard in many cases, see Smith, 865 So.2d at 1211-13 (Murdock, J., concurring in the result), I cannot fully concur in the analysis of the main opinion.

2017However, if a previous custody award favors one parent, i.e., by awarding one parent primary, or sole, physical custody, the McLendon standard applies to any modification action. *834 Rehfeld v. Roth , 885 So.2d 791 , 794 (Ala. Civ.

2017However, if a previous custody award favors one parent, i.e., by awarding one parent primary, or sole, physical custody, the McLendon standard applies to any modification action. *834 Rehfeld v. Roth , 885 So.2d 791 , 794 (Ala. Civ.

2015Vick, 688 So.2d at 855 . “[I]n the context of child-custody; proceedings, the dominant consideration is always the best interest of the child,” Ex parte Farm, 810 So.2d 631, 638 (Ala.2001), and “stability is inherently more beneficial to a child than disruption.” Ex parte Cleghorn, 993 So.2d 462, 468 (Ala.2008).

2009And in the context of child-custody proceedings, the dominant consideration is always the best interest of the child.’ Ex parte Fann, 810 So.2d 631, 638 (Ala.2001).” Ex parte Cleghorn, 993 So.2d at 468 . “ ‘The [McLendon standard] requires that the party seeking modification prove to the court’s satisfaction that *113 material changes affecting the child’s welfare since the most recent decree demonstrate that custody should be disturbed to promote the child’s best interests.

2002See, e.g., Ex parte R.C.L., 627 So.2d 920, 921 (Ala.1993) (treating “voluntary forfeiture of custody” and “pri- or decree removing custody from the natural parent and awarding it to a nonparent” as two separate and independent grounds recognized by Ex parte McLendon for overcoming the prima facie right of a natural parent to custody of his or her child); Ex parte Terry; Ex parte McLendon; Ex parte Mathews. 15 Citing Ex parte, Terry, 494 So.2d 628, 632 (Ala.1986), the dissent also states that “the contest [Ijere] is not between the [father] and a person to whom [the father] has transferred [cus

2002See, e.g., Ex parte R.C.L., 627 So.2d 920, 921 (Ala.1993) (treating “voluntary forfeiture of custody” and “pri- or decree removing custody from the natural parent and awarding it to a nonparent” as two separate and independent grounds recognized by Ex parte McLendon for overcoming the prima facie right of a natural parent to custody of his or her child); Ex parte Terry; Ex parte McLendon; Ex parte Mathews. 15 Citing Ex parte, Terry, 494 So.2d 628, 632 (Ala.1986), the dissent also states that “the contest [Ijere] is not between the [father] and a person to whom [the father] has transferred [cus

2012See also P.A. v. L.S., 78 So.3d at 981 (after the child was found dependent and custody of the child was awarded to a relative, this court held that the McLendon standard applied to a subsequent custody-modification action filed by a parent); J.W. v. C.B., 56 So.3d 693, 699 (Ala.Civ.App.2010) (same); and M.B. v. S.B., 12 So.3d 1217, 1218-20 (Ala.Civ.App.2009) (when the dependency of the mother’s children was adjudicated after a stipulation by the parties, the McLendon standard applied to the mother’s subsequent request for custody of the children).

2012See also P.A. v. L.S., 78 So.3d at 981 (after the child was found dependent and custody of the child was awarded to a relative, this court held that the McLendon standard applied to a subsequent custody-modification action filed by a parent); J.W. v. C.B., 56 So.3d 693, 699 (Ala.Civ.App.2010) (same); and M.B. v. S.B., 12 So.3d 1217, 1218-20 (Ala.Civ.App.2009) (when the dependency of the mother’s children was adjudicated after a stipulation by the parties, the McLendon standard applied to the mother’s subsequent request for custody of the children).

2026The [c]ourt thus finds that the [father] has met his burden of proof under the McLendon standard.' " 21 So. 3d at 1252 (footnote omitted).

2026The [c]ourt thus finds that the [father] has met his burden of proof under the McLendon standard.' " 21 So. 3d at 1252 (footnote omitted).

2012See also P.A. v. L.S., 78 So.3d at 981 (after the child was found dependent and custody of the child was awarded to a relative, this court held that the McLendon standard applied to a subsequent custody-modification action filed by a parent); J.W. v. C.B., 56 So.3d 693, 699 (Ala.Civ.App.2010) (same); and M.B. v. S.B., 12 So.3d 1217, 1218-20 (Ala.Civ.App.2009) (when the dependency of the mother’s children was adjudicated after a stipulation by the parties, the McLendon standard applied to the mother’s subsequent request for custody of the children).

2012See also P.A. v. L.S., 78 So.3d at 981 (after the child was found dependent and custody of the child was awarded to a relative, this court held that the McLendon standard applied to a subsequent custody-modification action filed by a parent); J.W. v. C.B., 56 So.3d 693, 699 (Ala.Civ.App.2010) (same); and M.B. v. S.B., 12 So.3d 1217, 1218-20 (Ala.Civ.App.2009) (when the dependency of the mother’s children was adjudicated after a stipulation by the parties, the McLendon standard applied to the mother’s subsequent request for custody of the children).

2026The father appealed, and this court, in a per curiam opinion, reversed the juvenile court's judgment, holding that the trial court had erred in applying the Ex parte McLendon standard rather than the "parental-presumption" standard set forth in Ex parte Terry, 494 So. 2d 628 (Ala. 1986).

2014See Ex parte Terry, 494 So.2d 628 (Ala.1986) (holding that McLendon standard did not apply in custody contest between natural father and ifíaternal -grdndparents when father did not lose custodial rights to maternal grandparents in divorce judgment); Ex parte Couch, 521 So.2d 987 (Ala.1988) (explaining that best-interest-of-the-child standard, and not McLendon standard, applies when parent seeks modification" of joint-physical-custody provision in judgment); and Ex parte D.J., 645 So.2d 303 (Ala.1994) (pendente lite custody order is not a final determination of custody giving rise’ to McLendon

2008Although this court has applied the McLendon standard to dependency cases, see J.F. v. A.G. , 607 So.2d 234 (Ala.Civ.App. 1991), Sexton v. Lambert , 611 So.2d 385 (Ala.Civ.App. 1992), P.Y. v. State Dep't of Human Res. , 634 So.2d 1021 (Ala.Civ.App. 1994), C.C. v. A.G. , 667 So.2d 128 (Ala.Civ.App. 1995), In re F.W. , 681 So.2d 208 (Ala.Civ.App. 1996), B.J.N. v. P.D. , 742 So.2d 1270 (Ala.Civ.App. 1999), A.H. v. R.M. , 793 So.2d 799 (Ala.Civ.App. 2001), S.B.L. v. E.S. , 865 So.2d 1214 (Ala.Civ.App. 2003), and F.G.W. v. S.W. , 911 So.2d 1 n. 2 (Ala.Civ.App. 2004), the court eventually recognized

2008Although this court has applied the McLendon standard to dependency cases, see J.F. v. A.G. , 607 So.2d 234 (Ala.Civ.App. 1991), Sexton v. Lambert , 611 So.2d 385 (Ala.Civ.App. 1992), P.Y. v. State Dep't of Human Res. , 634 So.2d 1021 (Ala.Civ.App. 1994), C.C. v. A.G. , 667 So.2d 128 (Ala.Civ.App. 1995), In re F.W. , 681 So.2d 208 (Ala.Civ.App. 1996), B.J.N. v. P.D. , 742 So.2d 1270 (Ala.Civ.App. 1999), A.H. v. R.M. , 793 So.2d 799 (Ala.Civ.App. 2001), S.B.L. v. E.S. , 865 So.2d 1214 (Ala.Civ.App. 2003), and F.G.W. v. S.W. , 911 So.2d 1 n. 2 (Ala.Civ.App. 2004), the court eventually recognized

2009The trial court stated at the conclusion of its findings of fact: "This Court believes that [the child]'s forthright statement that he wishes to reside with his father, the superior educational opportunities which exist at Pelham High School, and the [father's] concern and desire to intervene and assist this child in rectifying deficiencies clearly indicate that the McLendon standard has been met." [7] The mother does not raise any issue regarding the propriety of that procedure, but our caselaw makes it patently clear that a trial court may not transfer custody to a parent on a "trial basis."

2009The trial court stated at the conclusion of its findings of fact: "This Court believes that [the child]'s forthright statement that he wishes to reside with his father, the superior educational opportunities which exist at Pelham High School, and the [father's] concern and desire to intervene and assist this child in rectifying deficiencies clearly indicate that the McLendon standard has been met." [7] The mother does not raise any issue regarding the propriety of that procedure, but our caselaw makes it patently clear that a trial court may not transfer custody to a parent on a "trial basis."

2016In Walker , this coiirt '“determined that the evidence regarding allegations of domestic violence is the only evidence that could satisfy the second prong of the McLendon standard,” i.e., that there had been a material change in circumstances that could affect the children's welfare. 180 So.3d at 42-43 . .

2016In Walker , this coiirt '“determined that the evidence regarding allegations of domestic violence is the only evidence that could satisfy the second prong of the McLendon standard,” i.e., that there had been a material change in circumstances that could affect the children's welfare. 180 So.3d at 42-43 . .

2016Specifically, the father argues that, because he had sole physical custody of the child, the mother was required to meet the burden of proof for a modification of custody set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and that the trial court erred in determining that the mother had met that burden. “[W]here the parents have joint legal custody, but a previous judicial determination grants primary custody to one parent and secondary custody to the other, ‘the trial court [is] correct in applying the McLendon standard and requiring the [parent] to show that a change in custody would

2016Specifically, the father argues that, because he had sole physical custody of the child, the mother was required to meet the burden of proof for a modification of custody set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and that the trial court erred in determining that the mother had met that burden. “[W]here the parents have joint legal custody, but a previous judicial determination grants primary custody to one parent and secondary custody to the other, ‘the trial court [is] correct in applying the McLendon standard and requiring the [parent] to show that a change in custody would

2018Although we agree with the mother that, in its entirety, the Ex parte McLendon standard governing custody modifications does not apply to mere visitation matters, see Gallant v. Gallant , 184 So.3d 387 , 400 (Ala. Civ.

2018Although we agree with the mother that, in its entirety, the Ex parte McLendon standard governing custody modifications does not apply to mere visitation matters, see Gallant v. Gallant , 184 So.3d 387 , 400 (Ala. Civ.

2006The father does not argue on appeal that he met the burden of the McLendon standard. 3 Citing Ex parte Johnson , 673 So.2d 410 , 413 (Ala. 1994); Berrey v. Berrey , 622 So.2d 1316 (Ala.Civ.App. 1993); and Jenkins v. Jenkins , 541 So.2d 19 , 19 (Ala.Civ.App. 1989), the mother argues that the designation of the child's "primary residence" constitutes a custodial preference that requires the application of the McLendon standard.

2006The father does not argue on appeal that he met the burden of the McLendon standard. 3 Citing Ex parte Johnson , 673 So.2d 410 , 413 (Ala. 1994); Berrey v. Berrey , 622 So.2d 1316 (Ala.Civ.App. 1993); and Jenkins v. Jenkins , 541 So.2d 19 , 19 (Ala.Civ.App. 1989), the mother argues that the designation of the child's "primary residence" constitutes a custodial preference that requires the application of the McLendon standard.

2017The McLendon standard 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.

2017The McLendon standard 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.

2016Specifically, the father argues that, because he had sole physical custody of the child, the mother was required to meet the burden of proof for a modification of custody set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and that the trial court erred in determining that the mother had met that burden. “[W]here the parents have joint legal custody, but a previous judicial determination grants primary custody to one parent and secondary custody to the other, ‘the trial court [is] correct in applying the McLendon standard and requiring the [parent] to show that a change in custody would

2016Specifically, the father argues that, because he had sole physical custody of the child, the mother was required to meet the burden of proof for a modification of custody set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and that the trial court erred in determining that the mother had met that burden. “[W]here the parents have joint legal custody, but a previous judicial determination grants primary custody to one parent and secondary custody to the other, ‘the trial court [is] correct in applying the McLendon standard and requiring the [parent] to show that a change in custody would

2010In fact, she argues, the evidence is insufficient to meet even the McLendon standard. "`When this Court reviews a trial court's child-custody determination that was based upon evidence presented ore tenus, we presume the trial court's decision is correct: "`A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....'" Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 4

2010In fact, she argues, the evidence is insufficient to meet even the McLendon standard. "`When this Court reviews a trial court's child-custody determination that was based upon evidence presented ore tenus, we presume the trial court's decision is correct: "`A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....'" Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 4