McLendon Alive and Well When Mom Wants Custody Back from Grandparents

Everyone who spends more than a few minutes studying the law of child custody knows all about the McLendon standard, first articulated in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). The McLendon standard is a rule of repose designed to protect children from too rapid or too frequent changes in their custodial arrangement. Technically, it requires that the party advocating a change in the custodial arrangement must prove to the court’s satisfaction that the change advocated “materially promotes” the child’s best interest and is so beneficial as to overcome the inherently disruptive effect of a change in custody. The question confronting the appeals court in M.B. and E.B. v. S.B., Case No. 2071105 (Ala. Civ. App. January 9, 2009) was whether the McLendon standard was the proper one to apply when a mother seeks return of custody to her after the court has awarded custody to non-parents.

The maternal grandparents had filed a complaint when the children were 7 and 5 alleging that the children were dependent and that their mother (their daughter) was unable to care for them because of her dependence on drugs and alcohol. After a home study found that the maternal grandparents could provide “a safe, stable, and secure environment” for the children, and upon the stipulation of the parties, the Jefferson Juvenile Court found the children to be dependent, awarded custody to the grandparents, and ordered visitation for the mother “as agreed to and arranged by the parties.”

A year later, the mother filed an emergency petition, alleging a “material and substantial change in circumstances, namely that the grandparents had refused to allow the mother to visit the children. A new home study found that the mother “was able to offer the children safety, security, and love.” After an ore tenus hearing, the juvenile court transferred custody back to the mother and awarded visitation rights to the grandparents. When the juvenile court denied the grandparents’ motion to alter, amend, or vacate, the grandparents appealed. The grandparents made two arguments on appeal, first that the juvenile court erred in not applying the McLendon standard, and second that proper application of the McLendon standard required that custody remained with the grandparents.

The mother argued that the McLendon standard did not apply because the juvenile court’s ruling because “all parties knew that the initial custody recommendation . . . was one for temporary custody.” The mother also argued that the testimony “overwhelmingly shows that [she] is a good mother.”

The appeals court first noted that the ore tenus rule (that the appeals court will normally defer to the trial court’s determination of questions of fact) is not applicable to this case, because the question of which standard to apply is one of law, not of fact. The appeals court noted too that nothing in the juvenile court’s original ruling says anything about the changes it ordered being “temporary.” In fact, says the appeals court, the record in that case specifically states that “this matter is CLOSED to further Court Review.”
Accordingly, the maternal grandparents are correct in asserting that the juvenile court was required to apply the McLendon standard in ruling on the mother’s custody-modification petition.

The appeals court searched the record for any finding of fact indicating the court was applying the McLendon standard.

The juvenile court’s July 18, 2008, judgment and the record on appeal are silent with respect to which standard the juvenile court applied in modifying custody. However, we conclude that, because the juvenile court wholly failed to employ any of the language set forth in the McLendon standard, the custody-modification standard applied by the juvenile court — whichever standard that may have been — was not the correct standard, which, as noted above, was the McLendon standard. Therefore, the juvenile court’s July 18, 2008, judgment is reversed, and the cause is remanded for proceedings consistent with this opinion.

This does not necessarily mean that the grandparents win and the mother loses. Presumably, the “proceedings consistent with this opinion” could include a finding of fact from the juvenile court on remand that the change advocated by the mother “will materially promote the child’s best interest and that the benefits of the requested change will more than offset the inherently disruptive effect caused by uprooting the child.”

4 comments

  1. jUDY says:

    My son is to marry a girl that has two children and live in Alabama; the mother has lived with her parents since divorce from her husband and the mother gave grandparents custody and the and grandparents who now have custody at since the time of divorce because their daughter was sick at the time and they wanted to make sure that the father of the children would not
    get the children back and also he gave up his rights too. My son and future daugther-in-law want to gain custody back of the children and move back to
    Tennessee. The grandparents are irate and very irate with their daughter and
    say that if she marries my son that she will not ever get to see the kids.
    My son is a nurse and his future wife will e a nurse December of this year and
    they will be able to provide a good home for them. My son loves both the children and so does their mother. She has lived with the grandparents all this
    time and taken care of them and also taking care of the grandfather who is terminally ill and the grandmother is going on disability. My son and the mother want to give a normal and good home to the children. What do they need
    to do to gain back the custody??

  2. Lee Borden says:

    As the note above states, Mom’s going to have to meet the McLendon standard. If she’s doing this over the objections of her parents, she’s going to have a tough road. It can be done, but the odds are not in her favor unless she can show that there’s something her parents are doing with the grandchildren that’s harmful to them.

    You haven’t asked, but that’s never stopped me before, so I’ll just blurt out that your son needs to slow down here and think long and hard about whether he wants to walk into the middle of this hornet’s nest. There’s a thin line between the current standoff between his sweetie and her parents, and their all ganging up on him and deciding all this was fine until he showed up. He may not think this could ever happen, and YOU may not think this could ever happen, but trust me, it can happen, and it does happen.

    If I could wave a magic wand, I would have him BACK OFF and wait to move forward in his relationship with Mom until after she has reached some kind of resolution with her parents. Not only will it make it easier for her to deal with her parents; it will also lessen the likelihood that he’s going to get blamed for their conflict.

  3. Christina says:

    Hello,
    I have a matter at hand, in which the father has filed yet another modification. All he has stated is that the change “would promote the welfare of the children”. I filed a TRO on the father and he is currently in drug Rehab. He made a threat towards my life. Then, once he was severed with the TRO he filed to modify. The TRO hearing was continued and at the final hearing I was granted a 12 month protection order on the father. Now, the order is in Florida and the judge did not want to interfere with the pending case in Alabama, my ex did this so Florida could not get jurisistiction over the child custody case. I suppose, he and his lawyer did not think I would be awarded anything. So, I have read your blog about the “rule of repose” ei, The McLendon standard. I do not think he has meet this standard, as he did not inform me that he was entering rehab, leaving the child in the care and custody of his parents nor moving to Florida to enter this program. As I gave him in the last modification primary residence b/c I though that he had his act together more that I did at the time. I was no aware of his heavy substance abuse and now an concerned for the children. He has only maintained a home on his own for six months then he had his cousin move in with him to help with bills, then six months after that he moved back in with his parents, but he was actually preparing to enter rehab. I have maintained a home on my own since the divorce, I moved home from Alabama to Florida, that is why I let him have the children, in order for my to finish my degree and have gainful employment. Now, all this comes out and I think I have meet this standard not him. I am going to proceed in Alabama with the modification, Pro Se, I know I have a lot of research to do on my part, but I think I have a more stable home at this time than the father. I guess my question is do I meet the standard better than he does?

  4. Lee Borden says:

    Beats me. What I do know, and this should be a lesson for all custodial parents, is that allowing the children to live with the other parent “for the time being” or “just for a little while” is a dangerous move to make. I’m sure it works out well for some divorced parents, but I surely do hear from a lot of them who regret it.

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