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”).

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