The McLendon Doctrine in Alabama

Lawyers and judges in Alabama refer to the “McLendon doctrine” frequently. What is the McLendon doctrine, where did it come from, and why does it matter? Here’s a quick explanation.

Every state I know of has its version of a “rule of repose” for child custody matters, a principle that it’s not good for children to have their custody arrangements changed unless there’s a really good reason. The McLendon doctrine is Alabama’s version of this “rule of repose.”

The name comes from the Alabama supreme court case articulating the doctrine, Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). The case involved a custody dispute between the biological mother of the child and the paternal grandparents. The parties had agreed originally for the paternal grandparents to have custody of the child, but the trial court awarded custody to the mother after she petitioned for it.

The paternal grandparents appealed. After the Court of Appeals affirmed, the Supreme Court reversed, saying that it’s not enough for the mother to have shown that a change in custody would be in the child’s best interest. Instead, the Supreme Court said, there should not be a change in custody unless the mother could show the change “materially promotes” the interests of the child. Morever, the party asking for a change must prodcue evidence “to overcome the inherently disruptive effect caused by uprooting the child.”

This dual requirement (the “materially promotes” language on the one hand and the need to “overcome the inherently disruptive effect caused by uprooting the child” on the other) have operated as a powerful anchor holding existing custody arrangements in place.

Since the Supreme Court promulgated the McLendon ruling in 1984, Alabama appellate courts have cited it on average 18 times per year. The least amount of McLendon activity was in 2000, with seven cases, and the height was in 2003, with 28 cases. If I were a real man, I would have researched for you how many cases approved a change and how many disapproved the change. Alas, I have neither the time nor the inclination.

Recently, the McLendon doctrine has played a key role in the interpretation and restriction of the Alabama relocation statute (formally the “Alabama Parent Child Relationship Protection Act”). The relocation statute attempted to change the law on parental relocations after divorce. It provided that if one of the parents proposed to move away from the other parent and take the children and if the other parent objected, in the absence of domestic violence the court would be required to presume that the move was not in the best interest of the child.

Ruling in two separate cases in February and April, the Alabama Court of Civil Appeals has made it clear that the relocation statute has not changed the McLendon doctrine. Presume away, the Appeals Court seems to be saying, but that doesn’t mean the non-custodial parent who’s remaining in place automatically gets custody of a child when the custodial parent relocates. The non-custodial parent who wants to change custody because the other parent is moving must still satisfy the dual McLendon tests (“materialy promotes” and overcoming the “inherently disruptive effect of uprooting the child”).

107 comments

  1. Danie says:

    My ex and I have joint legal custody of our kids per our parenting agreement. I want to move back home to have the support of family as well my father has undergone bypass surgeries and I want the kids to know their family. He is opposed to this. I cant afford an attorney. How do I properly prepair for this. The kids visit him 10 days a month and shared summers. I don’t want to disrupt their relationship, but I have no one here to offer me a support system. My kids are 7 and 8. My fear is he will try to paint me as a bad mother, having said numerous times, I don’t care about the kids, I only want to move because its what I want. Important Question. Can I loose custody of my kids simply because I am petitioning for a move out of state (I will never leave if the court denies me). I want to make sure I don’t jeapordize the agreement that is already standing.

  2. Jim says:

    Lee, i am divorcing my spouse after 6 years of marriage. We are filing uncontested. She has a daughter on her own. We did not have any offspring between us. Can we still file uncontested, even though she has a daughter that i helped raise? And can she file for child support even though her daughter is not biologically mine?

  3. Lee Borden says:

    No problem filing for uncontested divorce. If you have not adopted your wife’s daughter, she cannot get a court order of child support for her from you. If you want to help her with child related expenses, you’re welcome to do so, even after the divorce is effective.

  4. worried parents says:

    i was just trying to find out if the childs biological mother files an ex parte child custody order if their is any way around it, she is mentally abusive and minupulative to the child and is trying to keep the father, who wants nuthing to do with her, but wants everything in the world for their son. the divorce isnt final but the papers that are given to the lawyer are signed by both mother and father stating when both parties get the boy, time, dates, and so on.

  5. Lee Borden says:

    I’m having trouble understanding the facts and your question. I THINK you’re asking whether a mother who has signed documents calling for joint custody can subsequently file a motion seeking sole custody of the child. The answer is yes, although most judges would want to hear an explanation why there has been such a sudden change. It certainly is permissible to introduce evidence that might establish an ulterior motive for the filing (an effort to hold on to Dad). The most important task Dad has here is to establish that he is a loving, stable, caring father to the child.

  6. Jennifer says:

    Lee I have a question for you, 4 years ago my ex husband was given custody and they closed the case,I recently found out my ex husband made my children lie to all parties involved when asked about my ex abusing the children, I have 3 boys ages 15,14 and 10. My oldest son told me their dad abuses them , and he mentioned(mom) just like when we was in court dad told us over and over again word for word what to say even to our GAL’S, And if we got it wrong they was gonna be beat black and blue until you get it right, Well over halloween weekend a dhr report was made against my ex husband. Report was called on child abuse, child endangerment and neglect. My oldest son contacted me immediately to tell me dhr of shelby county was there at the home, I contacted Dhr of Shelby County myself and indeed was correct, and connected to the worker, She made a appointment to see me and talk me, she stated the report was on my 14 year old, that his father hit him in the face 3 times and was kicking him like a dog. she stated they are investigating all kids in the home not just one, She said they are also doing a assessment and it still on going, I do not know what a assessment means? She stated its open to Dhr only right now and have not been opened to the court yet, But advised me to go to my county I am living in where custody was established and seek a order showing pending open invesitgated case in Shelby County. She said something about a ex parte order, Pfa and emergacy cusdody, but i could request the father not to be there knowingly he’s abused them and they are terrified to talk to anyone and assure their needs of safety, can you tell me what it mean, Ex-parte order? And a assessment? just trying to see what im looking at doing before i do it

  7. Frustrated says:

    Just curious if a father and maternal grandmother had signed an agreement for joint legal custody (but grandmother has sole physical custody) is there anyway the father can ever get full custody of his daughter. It seems he must meet McClendon (which is pretty much impossible) as he is regularly seeing her every other week, and has remarried, has a house, and a job. However the courts won’t change custody over to him as there is “not a material change”. Seems he will just have to wait and “hope” that the mother will get her act together and try to come get some type of custody from the maternal grandmother, although she doesn’t seem to want the responsibility, since she can just play and “be mom” when she wants at grandma’s house.

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