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”).
I know you’ve worked hard to make it short, but I’m having trouble digesting all the facts. Is there any way you can distill this to a question rather than trying to tell us everything you think matters?
Certainly…I’ve searched thru cases to try to find something similar to our situation and I just haven’t had much luck; so, I’ve been piecing together portions of different outcomes from cases which included a/some similar components….I’m at a loss…I suppose, as with everyone else on here, that I’d like to know thoughts of how you and others “think” this may turn out.
However, with your response, I think more what I really need to know is……other than…
1. using the custody factors to “prove” that the relocation is in the best interest of kids (better opportunities
for career, better schools, more centralized around family..although not as close to couple of family members; I
am the parent most willing to cooperate with the other; I’ve been the “nurturing” one since birth; kids have been
doing this arrangement for over a year now and are both very happy, health kids; I have and will continue to be
involved in their schools, friends, etc and dad has not)
2. compile a concise timeline or the like to “prove” dad’s intent is to punish me (such as him stating he’ll drive
the 140miles to the old meeting spot but will not drive the 140 miles in the other direction; made me drive
all the way to birmingham this past fri to drop the kids off and yesterday to pick them up..even though that meant
he spent less time with them)
3. compile “proof” that dad’s relationship with the kids will remain the same (same distance and time for him to
drive and roughly 30-45min more for me; still every other weekend and holidays, etc; still can talk to kids on
phone as desired..)
Is there anything else I should be doing..or not doing..as we’re preparing for a hearing?
THANK YOU!!!
Yes. I’m a big believer in “strike sheets.” Make a strike sheet for each issue you identify. On each of the sheets, type what you need to show and what Dad will argue, and then list (and perhaps attach) the key evidence or questions that need to be asked. Your lawyer can then work from the strike sheets during your hearing and do a better job representing your interests.
Much more about the care and feeding of strike sheets here: https://divorceinfo.com/childcustodyfight.htm .
My grandson is in the custody of their biological mother -she has moved 9 times in 2 years-child has been in 5 different schools -three different states -and is looking to move again -at what point does the become child abuse or child neglect ?
You’re a long way from child abuse or neglect simply on the basis of multiple moves. However, evidence of instability will certainly be relevant in an analysis of what is in the child’s best interest.
I have a question and not a comment. My husbands ex has been receiving support for their two children for the last nine years. In June of 2007 my husbands oldest son graduated from high school and enlisted in the Marine Corp. Within a month he was back home due to an injury. When he came back home he moved in with his father and I. That has been since July of 2007. The problem is that his ex has not notified the court that her oldest child is #1. no longer living with her and 2 Is now working full time making about $25,000.00 a year. His decree states that he is to pay support until the child reaches the age of 18 or graduates from high school whichever comes first or becomes emancipated. I think that each one of the above criteria has been met, yet she is still receiving support for the oldest child. My question is this….whose responsibility is it to notify the court that there has been a substantial change in custody etc. and who incurs the expnse if the case has to be heard in a court of law. We reside in georgia nd the divorce took place in georgia as well. Any help with these questions would be greatly appreciated.
I’m afraid this is a GA case and governed by GA law, and you probably know GA family law better than I do. In most states, it would be Dad’s initiative to notify the court of a change that would reduce the child support he’s required to pay.
My husband has joint legal custody but daughter’s mother has physical custody. Dad is in Georgia & Mom is in Alabama. Mother receives child support monthly from dad. She’s been ordered by court to initiate calls to dad every Tues, Thurs & Sun but doesn’t do so. Dad calls at least 3x/week just to speak to daughter but calls are never answered at home or on mother’s cell phone. Leaves voicemails and calls still never returned. Dad has court ordered visitation during summer for 9 weeks and 1 week at Christmas. Mother used to send “adequate clothes” as ordered by Court but clothes she sent didn’t fit daughter or were full of holes. That’s her definition of adequate clothing. Mother doesn’t send asthma medication even tho court ordered her to send medication. We always buy daughter clothes she needs for summer and send them home with daughter — following year none of the clothes we purchase ever come back — only clothes that are too small or worn out. Now, at Christmas last year, dad went to pick up daughter. Step-dad dropped off daughter at local restaurant (agreed meeting point) and left before dad got there. Daughter (10) was freaked out. Police were called. Report made. DHR investigated mother. Apparently it’s not a crime in Alabama to leave a 10 year old child unattended in a public restaurant even tho they’re scared (guardian ad litem wouldn’t even talk to dad about situation-hung up on him). Mother has been reported to DHR by daughter’s doctor (dad was never told-found out from daughter after restaurant ordeal) for not giving asthma medicine. All dad wants it to talk to and see his daughter with no grief from ex-wife. But she doesn’t want anything to do with him. So dad has had to take her to court on numerous occasions to have court orders enforced for visitation. But if we do anything in the Court system, mother calls and yells at father telling him “bring it on”. Daughter wants to live with dad, but we already know Alabama Court won’t let that happen becuz they are blind to the scumbag mother (and she is a scumbag). Judge is sick and tired of the two of them in court but the only way dad can get her to abide by court orders is to file a motion for hearing in court so he can tell the court she’s not doing what she’s been ordered to do by court. She sits in court and plays goody too shoes in front of judge and tells him she is following the orders (when father brings evidence that she is not but the court won’t even look at the documentation) but then outside of court she doesn’t follow the court’s order .. and for the past 6 years has basically gotten away with it. She has even told father that she doesn’t care what the court tells her-she’s going to do what she wants to do. We’ve always accommodated the mother’s requests for changes to visitation and have tried playing by her rules but still she makes everything difficult. All we want is for mother to send proper, adequate clothing for visitation and let dad talk to daughter when he calls. What do we do? We filed a motion to enforce the Court’s order and the court sent it back and said we had to pay $260. It’s very frustrating. We had an attorney-$3000 later and nothing has changed. Help!
I have two boys 6and 9.
I would like to move to my hometown of Spokane WA but there dad has refused permission
All of ny family is there and I have no one in AL. Ialso have a 24 hanicapped son from previous marriage that needs constant supervision. Ifeel the father is doing it out of spite knowing that I have wanted to move for years. I do not doubt he loves his boys but I would never do anything that I did not feel would be benefical in the long run for my sons. The father does not have a home the boys stay with thier grandmother on his weekends and sleep on the couch. He does not get them on Tuesday which is standard visatation. His work is unreliable self employeed he does not pay half of medical or schools supplies or clothes,or extra curriclum activties or dental.
I just would like to know my chances of being able to relocate, Iwould be willing to work with him on visatation as best as I could. The schools are very good in WA, my family would be thrilled to have the boys there, and also the facilities for my older son are much better.
Thank you
The subject of relocation is fully explored here on Divorceinfo.com. I don’t know of anything to add to it other than to remind you that, in the absence of domestic violence, the judge is required to presume that the move is not in the best interest of the children.
I hope someone can help lead me to where or what I need to research. My fiance and I have physical custody of his disabled twin boys. This has been since the summer of 2006 when their mother abandoned them. My fiance should have went to court then but did not and she came back around April 2007. Since then she is still just a mother when convenient for her. We are trying to figure out what we need to do in order to take her to court and us win for custody. We know she will always be allowed rights since she is mother, but he wants her to only have visitions (no rights when it comes to decisions, etc.) One of the boys is brained damaged, has CP, a shunt, is still tube fed, etc., so we are dealing with kids with major special needs. Their needs were not being met with her and probably never will be. Right now we are documenting everything that goes on, but I am trying to find if there are other cases in the Mobile, Alabama area. We want to do everything right because we know how these judges can be here in Mobile County Alabama. Any help would be appreciated! Thanks.
Question on strike sheets that you suggested, I offered to split visatation 2weeks with him two weeks with me, same town same school etc.. and no child support He said no it would be to hard on kids but would take every weekend. And never has taken on Tuesdays as in visatation. My intent is to move to WA state to have the help and support of my family as I have no family in AL would that have any lead way in this relocation law?
I’ll be glad to help if I know what you’re asking. Please restate your question, and ask someone with good writing skills to help you add correct punctuation. Thanks.
I would like to relocate to WA state. My ex will not give his permission. I divorced him due to the fact he was a peeping tom to my daughter from a previous marriage from the time she was 9 til 18. I did not find out til she was 21 at that time I divorced him, when confronted he admitted to it. My daughter did not wish to press charges cause she did not want to hurt her two little brothers whom he is the father of. Would this affect any decision a judge may have of my wish to relocate. I was born and raised there and all of my family is there I have none in AL. The boys were born in AL and are ages 6 and 9.
It may make a difference if you can show that Dad is guilty of sexual abuse against his stepdaughter, because what he did may rise to the level of domestic violence (which would do away with the presumption). I say “may” because a court may rule that the domestic violence must have been directed at you, not at your child. Your attorney can help you sort this out. It’s an interesting question.
What would the consequences be if you made a move out of state before a ruling was made with your children?
I wouldn’t want to do that. I believe there’s a significant risk the judge might decide that I was playing fast and loose with the court’s authority. I can’t cite you any authority, however, to say such a move is illegal.
Just wondering if you, and I would suspect others, believe it is best not to relocate before the court hears the case what would the courts have one do while awaiting a hearing. I understand the premise however if a responsible person proposes a move based on a job then it stands to reason the offer isn’t indefinite. Is there no time requirement for the court to issue at least a Temp or PDL order so the relocating parent may make an educated choice?
If the relocation act uses the McClendon standards why the need for an additional statute other than bogging the courts.
Final question is there a limit as to how close to the child the non-relocating parent must live in order to lodge an objection. If there is no limit and the non-relocating parent by their choice already lives 250 miles from the child, why exactly would this apply? Not literally apply but more why in spirit would it apply?
Thanks,
NtBrd
Thanks for the site.
Mom has a continuing $139K gambling problem along with a continuing doctor shopping practice for Rx Drugs- butabutal. Although these things are illegal why do I continue to hear from attys, “it only matters if you can find someone who wants to procecute them”. I have nearly two hundred well documented absente parenting issues in the past three years. All of these beg a change in custody hearing.
1. Are there any AL cases where custody was awarded to dad where mom is committing white collar crimes?
2. What role could a gardian ad litem play in bringing these to the surface?
Thanks.
Thank you so much for this article! It has given me great comfort and confidence in our upcoming court battle. My husband’s exwife moved with their younger child to England upon their seperation and left the oldest child here in the US. That was in 2003. This year, after 5 years of sporratic contact and my husband’s family paying travel costs for all but 1 visitation (there has been 1 per year for the last 5 years), and very little attempts on her part to remain in the child’s life in any way, she has decided to sue us for full custody of the child she left here to take him back to England with her (he was born and has lived his whole life in Alabama). My stepson is now about to be 7 and we have been preforming all parenting duties and he has 2 siblings in our home.. and then extended family is mostly in Alabama as well… and extended stepfamily. Our attorney citied the McLendon case in our answer and found this while doing research.
LEE, I have a serious question,My ex husband has custody of my 3 boys, I have standard visitation. while I had the kids on a visit. they was coming to my house with horrible stories, bruises and telling me their father never takes care of them his girlfriend does. well it gets worse, The kids got enrolled in a daycare down the road from my house,so I could have as much visitation as I could get. The kids has been seeing their father having sex with his 20 yr old girlfriend. and was expressing odd behavior at the daycare center, This was reported to dhr and the gal. They called the center and confirmed the facts with reporting it. They found it to be true and now is threatening me.that If I tell the judge , he will put my boys into fostercare,. This seems like blackmail or something. I cannot and do not understand who this could be.They have found their evidence to be true and still wont do anything,.??? I need help and some advice please, this is at Jefferson County Family Court, and when I went to court on Sept 2nd, they continued it to Oct, because the father didnt show up
I recently filed for temporary custody and was denied. I signed custody to my ex-5 years ago in another state which he used to get out of the military within the week after we filed . I could have stopped it but at that time made a decision and an agreement with him that he would give me primary after I returned to Birmingham. We have been battling this ever since. In May 2007 he decided to make a move with a woman that he met over the internet and wanted my child to go with him. We filed a restraining order to stop him from taking her out of state. Also, emergency change of custody which was denied because they said it was not an emergency. He never made an effort to visit our daughter and in Jan. 2007 decided to return. He was in agreement the entire time that he was going to give me primary and in May decided by surprise that he was actually going to fight. He proved that he makes little to no money, lives with his parents, and has not found a stable job and has not provided for his daughter for over a year! My husband and I now both have jobs, live in a great school district and have a new baby which the kids have become very close. and I was denied. Im just shocked!! I
would have gotten custody of her if I would have fought a long time ago, my daughter wants to live with me and I feel totally helpless. I just need maybe some answers!
I’ve hired an attorney to recoup 14 months in back child support and petitioned for an increase in child support and also filed for a wage garnishment order. My ex husband has now petitioned the court for full custody (to get back at me and to get out of paying child support!) All I wanted is what was owed to my son and now it looks like i’m involved in a full blown custody battle. He has even requested a psyc evaluation for our 6 year old! My child makes straight A’s and is active in Tee Ball. What are his child chances of taking my child?
I’ll tell you what I tell everyone in your position: (1) this is the oldest trick in the non-custodial parent book, and judges know that; (2) your primary focus should remain on being a good Mom to your children; and (3) that having been said, you should take this threat seriously and prepare adequately.
Get from your lawyer the factors influencing child custody in Alabama, and make a “strike sheet” for each factor. Write down for each factor the arguments in your favor (attaching or describing any documentation needed to support the argument) as well as the arguments you would expect Dad to make (and the best way you know to refute those arguments. You and your attorney can use those strike sheets to prepare your case for trial, and your attorney can even use them to conduct the trial if needed.
Mr. Borden: I have been going through a very protracted divorce with my ex-husband utilizing “abuse of due process” to continue to abuse me. He has filed mechanic liens, false PFA orders against my family members, has a website regarding the “crooked judges” and his abused daughter. He has called the police and DHR numerous times. He has signs posted around town to protect his daughter from “the child molester.” His latest stunt is he has filed a PFA stating my step-dad has been ejaculating on our three year old. He is pro-se and has filed several bogus motions for continuations. He has called my job, written the board of nursing, and his sister and friend has too. He is judgment proof, or I would of course sue him in civil court for abuse of due process, etc. I have won sole custody and he has appealed to the appellate court. Three attorneys have withdrawn and he is now pro-se. He has even teamed up with my ex-renter and has assisted her with forging a contract stating I gave her rights to half of my property. The man is dangerous. My friends and family almost don’t want me to win the appeal because they are afraid of what he will do to me. My attorney said he doesn’t know what to tell me but that he will probably file motions for the rest of my life because it is about control and destroying me. Can you please give me something I could possibly do. This is wrecking my whole family. I can’t even go around my family through the holidays because he managed to get the PFA case continued until the first of 2009. I am in fear of my life, and this is truly like a movie. What can I do? Help me please.
Sounds to me as if you’re doing all you can do. Make sure you remain the reasonable one, and of course take appropriate measures to protect the safety of your children and you. And then, to the extent possible, move on with your life.
Can one ask the appellate court to give up jurisdiction to solve an emergency issue, or does one have to wait until the appeal court renders a decision? Then if it is appealed to the Supreme Court (which it will be) then how can you address visitation or child support during the process? Don’t judges have the power to limit “due process” to a citizen who is obviously filing malicious suits? Can’t the judge issue an order demanding and compelling the litigant to require permission before a suit is filed? How can one convince a judge of abuse of due process if the litigant is staying under the radar by filing false motions in different court rooms ie. domestic relations, family court, juvenille court etc.? Smart abusers don’t threaten out loud because they know this would land them with a PFA or jail. The true abusers are savy and learn how to manipulate the system and our legal system is set up assuming those involved in using it or fairly decent people. I am baffled at how much a person can get by with. I just honestly believe if it were me I would have already have been sanctioned. Thank you.
You’re welcome to ask, but I would be surprised if the court grants your request. The latitude of discretion we afford judges is quite broad, but most judges are reluctant to test the limits, and the kind of rulings you are describing certainly would test the limits.
I need help! I gave up custody of my son three years ago to supposed friends. Without legal guidance on my part, and them having an attorney, I was hoodwinked into beleiving it was temporary. I was very young and had no family or friends to help. I dealt with my stability issues and have repeatedly taken them to court over and over trying to regain custody, but they keep fighting me. Why? I have no idea, they always had an agenda, I just didnt see it. I was an easy target. So my son is 8 now andI still havent given up hope, but it seems as though I cannot meet the standard set by the McLendon case. Is there anything left that I can do, other than visitation?
I have joint custody of my 3 year old daughter,him haveing academic control,& I haveing religious.
I have presumed primary physical custody.
He takes her at 1 pm each sunday & I pick her up same time following sundays.
Does he have the right to take physicail custody if he moves to a better school distric when she turns five & becomes school aged?
she has only recently started this arangment…He’s telling me that he intend to buy a house in a better school distric this year & the judge will rulle it is the best interest of the child..
She has 2 sisters one five one infant she loves them both,& calls during her time with dad crying about missing them especaily the older of the two…
Does religion matter to the courts? he doesnt want to take her to her church classes on his week
Sunday & wendsday,can you do that??
What can I do to ensure a ruleing in my favor in the next two years??
please help.
Nothing. You can’t guarantee anything. What you can do is to concentrate on being Mom and take care of your daughter. If she’s doing well in her school and learning what she needs to learn, it’s really hard for a judge to decide that a change is needed.
Lee, I went through my divorce in 2005. I am active duty military. She left and I have joint custody, with sole physical custody. She was not a good mother at all during the marriage, drinking, drugs, and cheating. I am a military officer, and this can’t be a part of any marriage let alone the military. Filed for and got the divorce. Have had visitation with her for the past almost 4 years. She has given up visitation periods over and over. She doesn’t call the children and works less than a mile away and is not a part of their lives unless it is convienint for her or her job. I think it is a status issue for her. She has another child from her first marriage, who I helped raise, that she has given up rights to twice, once before she met me and once after. Her father was one of them and he was convicted of sexual assault 3rd degree on this child his grand son. She has been remarried and lives about 40 miles away. The military wants me to move again 4 years later. I am opting to retire and move to Florida, get married and start my life again with my new love. She has two children and they all get along great. She has a wonderful family support network there as well. I have had several job offers in that specific town. My mother has lived with me since my father passed away and has been a part of the childrens lives since their births. She lives with me now and helps out as well. She will be moving wuith me as well and still will be part of the family. I have told her and her new husband of the upcoming move, she is not very happy and he is even more upset than she is. he said he will fight me, not her. He loves the children more than her I think. But he has no rights as a step parent as my new wife will have non either, right? They have money and I think that is their plan to fight this whole thing even though I have offered them more time for visitation than what they are getting now or have ever taken in the past. What are my chances? I want to move them without the court battle, and if I have to go to court I am going to fight for more child support sole/full custody, and a change in the visitation. IS this a good course of action? I already have an attorney who fought for the first case and we won, but I have not yet talked to him.
Then it’s time to talk to him. The cards would normally be stacked against you, so you’re going to have your work cut out for you to demonstrate to the court how this move will benefit the children so much that it overcomes the presumption that it’s not in their best interests.
Is a criminal conviction of domestic violence enough to presume that relocation is in the best interests of the child/children? My ex-husband and I have joint legal custody, I have been granted sole physical custody. There is a domestic violence case pending against him; it had not been resolved by the time the divorce decree was entered. Immediately after filing for divorce I had relocated to my mother’s home in another state and hoped that because of the domestic violence the Relocation Act would not apply. Apparently I was mistaken as the judge has described the children’s residence in the new state as temporary and ordered that I must return to Alabama and establish residency for the children within 60 miles of my ex-husband’s home at the end of this school year. It was further ordered that if I did not comply, my ex-husband would be awarded physical custody.
Why would the judge ignore the domestic violence that was testified to in court? Granted, my ex-husband perjured himself on the stand regarding the domestic violence, but I felt my testimony was impactful. I now have an audio recording where my ex admits that he did commit domestic violence repeatedly and that he in fact, perjured himself before the judge. (The DV ranged in degrees from pushing and shoving, to striking me with thrown and held objects, to punching and choking, to threatening me with knives and guns, and he verbally threatened to kill me as well as himself-this spanned a three year period with frequent episodes of abuse. My ex is seeing a family doctor and a therapist and has been prescribed medicine because of his violent actions. That information was testified to in court, by him!)
I thought the stipulation regarding domestic violence was put in place to protect victims of abuse; why would the judge be so dismissive of my concerns for my safety in regards to location relative to my abusive ex-husband? Would it be prudent to petition the court again in the relocation matter if a conviction is made in the pending domestic violence case? There were multiple reasons why a relocation to the new state was highly beneficial to the children, but apparently none of those were taken under consideration either. If the judge remains adament on the issue, can that order be appealed to a higher court?
Some more info on my case: the judge FOUND that there was domestic violence, but then made a determination (not sure of his expertise) that it did not affect my children (though they watched it, heard it, and observed the bruises/injuries during a 3 year period). My attorney did not advise me to have my eldest child testify or to have a therapist counsel my children and testify, nor did he request that a guardian ad litem be appointed for them given the circumstances. I’ve also found out that my attorney has been suspended, weeks prior to the final decree being issued.
There is an order in the decree that states if I do not comply and return the children to a residence within 60 miles of their father at the end of the school year, they will be taken from me and given to him. By that time, my children will have resided with me in the new state for 9 months. Why would a judge endanger my children by placing them primarily with a known abuser who has violent rages? Why would the judge force me to choose between my safety, my economic future, my familial support and my children? It ISN’T MY FAULT I had to divorce and did not have the financial means or expectation of safety to set up residence wherever I pleased.
Since I walked out the door, my ex has harrassed me via text and phone conversations, pressuring me incessantly to reconcile. Even now that the divorce is final, he is still doing so. It is NOT about the kids for him: he is only using them to try to continue to control me. He calls frequently and doesn’t even ask to speak with them, he just hounds me to return to him. I asked my attorney at the time I filed the divorce to assist me with a restraining order and a request for an order of protection, in fact, the attorney ADVISED it at the intial consultation. Then he did neither. My greatest fears if this order stands, are that I will be alone in Alabama, with no familial support,and my ex will psychologically pressure me to return or he will simply complete what he was working on during our marriage, and I will end up seriously incapacitated or dead.
It isn’t just that this relocation was in my best interests, it was most definitely in the best interests of my children emotionally, educationally, recreationally and medically. They are very close to my mother and father, much closer than they were with any of his family. I was more than willing to ensure that visitation of the children with their father was occurring over the phone, through webcams, and through frequent visits, even extended ones (assuming there wouldn’t be any violent acts on his part towards the children when in his care or myself-during exchanges). I am so confused and appalled that a statute that came equipped with a clause to protect domestic violence victims is being used to force a victim to return to the stomping grounds of her abuser!!
My husband was notified by the ex that she wants to move several states away. We feel this is not in the best interest of the child she has physical custody of and want to petition the court for a hearing The attorney we talked to advised us to petition the court for a hearing on our own. Are there forms required? Is he just blowing us off? There is a very narrow time frame in which to get this done and any wrong moves could put the entire thing in jeapordy.
I wouldn’t say “blowing you off,” but I would say your attorney is expressing a fairly low level of concern for such momentous consequences. In my experience, what needs to be filed, and filed right away, is a petition to modify asking that custody go to Dad since Mom is moving away. You’re shooting a big gun, so my natural inclination would be to want a skilled marksman (the lawyer) by my side.
Lee, I divorced in 2007. I signed for joint custody legal/physical. In August my ex agreed it was in the interest of our 2 children 15 boy and 6 girl to be with me 10 days out of 14 days. This has been a set pattern. I am remarried and we are both teachers and have a great family. However, the ex does not pay for half of our children’s needs like we agreed on. I am taking him back to court for a change of custody and child support. What are my chances? I understand I must prove the change is for the best of my children, but this will not affect their visitation schedule, only help with their money needs.
Four days out of 14 sounds awfully close to standard visitation, so if the court accepts your narrative that you and Dad agreed on this schedule, my guess is that your chances are good. Keep in mind, though, that the decree says what it says, not what you and Dad may have discussed or even what you agreed to do. So Dad can argue that the children should live with him just as you can argue they should live with you. Be prepared to document the schedule that you and Dad have followed to help demonstrate to the court that the disproportionate share of caring time (and presumably, expense) is falling on you.
Hello Lee, My step son came to us this weekend with bruises on his face, bottom, hip, and back. When we asked him what happened he said his step dad had spanked him. He told me that his face kept hitting the sink when he was getting spanked. I called the police here in Limestone county (where we live) and they told me I had to contact police in Fayette County (where they live). The child is 8 years old and weighs like 45lbs. He is tiny. My husband drove to Fayette 2 1/2 hrs away on Saturday to the police to file a report. They took pics and called DHR. We got a safety plan and temp protective order for the kids to stay with us until today. We went back to DHR in Fayette today and they said they could not show intent and let the kids go home with the mom back into the house with the stepdad. They put another safety order saying he is not allowed to physically punish the 3 children. This man has threatened my husband’s life on another occassion and lost his job for abusing a mentally challenged patient where he worked. Neither the husband or mom work, they live with his mom and the only income they have is the 1250 we give a month in child support and the 900 they get in food stamps. Do we stand a chance at getting custody of his kids if we persue this. We feel that their safety is at risk.
Wow. That’s so scary. Has a court ruled on this, or is this an administrative decision by DHR? It sounds like it’s DHR’s decision only.
I would check around and find a good divorce lawyer in Fayette County who knows the judge there, and have this conversation. And as in all of these cases, make sure this is Dad’s fight, not Stepmom’s fight.
Thanks for your advice. It is just DHR’s decision righ now. It is dad’s fight. I am just doing some leg work for him. Trying to get all our options. DHR said that I needed to go with him yesterday since I was the one who saw the bruises first. I did not go initally on Saturday because I thought it needed to be my husband only. My main question is do you think he has a chance of getting his kids because of this?
Sure he has a chance. If he’s serious about this, he should follow the instructions on this page: https://divorceinfo.com/childcustodyfight.htm .
Lee, one more question. I am looking for a lawyer in Fayette county and the only family law attorney I can find is Nolen and Nolen. They won’t represent us because they represent DHR and sinc DHR is involve we can’t use them. Does it have to be an attorney from Fayette or can we use one from here in Athens where we live?
You’re looking for lawyers who have litigated frequently in that county. In general, the closer the lawyer’s office is to the county, the more likely he or she will have spent time in its courts.
Lee, I asked for your opinion in April about taking my ex husband to court for the change in custody and for child support. His attorney has responded to me with a letter stating that they are going to air our dirty laundry stating that he believed I had an affair while we were married. Our divorce states unreconcilable differences- can they bring up something such as this when the only issue is with the two kids and that they stay with me 10 out of 14 days? Thanks!
Sure, Dad can bring up the price of cotton in Sri Lanka if he wants to, but that lawyer knows that this is nothing but a thinly veiled attempt to intimidate you from asserting your legal right to receive guideline child support. Most judges don’t give a flying fig about the cause for divorce in a post-divorce modification. Life’s too short.
Hi
My son and his ex divorced about 9 years ago. We did not fight her having custody. My ex daughter in law remarried. My granddaughter recently said she wasnted to live with my son and his new wife. My ex daughter in law was totally in favor as long as he continued to pay child support. We have her saying you pay me child support or you will not get the child, she has an attorney now and her tune has changed. My granddaughter does not even want anything to do with her Mother. We have told her, her Mother loves her and is just having a diffcult time. A friend has said that the court may frown upon my son stopping child support payments ( something about dirty hands). We are going to ask the court to appoint a guardian. Do you think the court will punish my son for not paying one months worth of child support?
Mary
Why would he want to do that? Why not get Mom to agree that the child can live with Dad and that Dad will keep paying her child support? Then the next time there’s a change in their incomes, Dad can file based on a material change of circumstances and get child support from Mom. She may not like it, but that’s the way the system works.
I am having problems with my sister,wanted to know the Alabama laws about Restraining orders.She has lost custody of her kids to our brother,because of drugs,inprisionment,and she is not even allowed to live in the home where her children are,which was issued by the courts.Now she is trying to get back at everyone,she called up my family doc and lied about me doing criminal things with my pin medication and almost lost my doctor,i havent spoken with her in months.I live accross the street from my brother,to help out with her 2 children that she constanly abandons.We are at out witts end about what we can do to stop this women.She knows she cannot be proved to be doing all these things.My brother is afraid to say anything to courts or their social worker because,he is afraid he will lose custody of our niece and nephew. She has to be stopped,somehow i hope we can do that without any problems with her children.
Also she leaves for a few weeks then just comes back to the home,where she is not allowed and noone does anything about it,in fear of losing the kids.She has threatened to lie to the courts and the social workers if we turn her in.She had been doing this for seven years now,and she knows she has everyone where she wants us.What a horrible person to say she would lie to the courts about anything so we would do if we dont let her do whatever she wants.The children dont even act like they care about her anymore they are 3 yrs old and 8yrs old.I believe she needs to be stopped.What can we do to ensure the safety of the children staying in the home and still keeping her away?She yells at them children and everyone else,and blames everyone but her self for her actions,and blames us for not being allowed to live there.
Any advice you could give,if any would be greatly appreciated.Thank you in advance for your time.