Alabama Relocation and McLendon

The Alabama Court of Civil Appeals says that a court awarding child support to one parent from the other amounts to an award of custody to the recipient. Ruling in the case of T.B. v. C.D.L., Case No. 2031057 (Ala. Civ. App. April 8, 2005), unmarried parents were litigating where the child should live.

The original award of custody was to the maternal grandmother while the mother attended college. However, the mother had cared for the child in her own residence from the time the child was 11 months old and had been awarded child support from the father.

The mother sought to reduce the father’s visitation rights when the child was about 12 years old. When the father learned she was planning to move to Georgia, he counterpetitioned for a change in custody.

The juvenile court ruled that either the father or the mother must meet the McLendon standard (change must materially promote the best interest of the child and the benefit of change must outweigh the inherent disruption of uprooting the child) against the maternal grandmother. The juvenile court did not apply the McLendon standard to the father as against the mother.

The Appeals Court ruled that the previous award of child support to the mother from the father constituted an award of custody to the mother. Therefore, the juvenile court erred when it failed to apply the McLendon standard to the father as against the mother. And here’s the language dealing with the relocation statute:

Because the mother had been awarded custody, the father was required to meet the burden imposed by Ex parte McLendon to succeed on his modification petition. As this court has recently held, the application of the Alabama Parent-Child Relationship Protection Act not only does not preclude the application of the Ex parte McLendon standard to a request for modification of custody based, in part, on a parent’s desire to relocate, but, in fact, it requires that the Ex parte McLendon standard, in addition to the factors outlined in the Act, be considered by a trial court faced with the issue after the trial court has made the initial determination regarding whether the child’s best interests would be served by the relocation. Clements v. Clements, [Ms. 2030768, February 11, 2005] ___ So. 2d ___, ___ (Ala. Civ. App. 2005). The juvenile court’s judgment indicates that it concluded that the child’s best interests would be served by the father being awarded custody. Although the judgment also makes reference to the benefit of the change in custody outweighing the disruption caused by that change, the juvenile court’s comparison of the disruption caused by the proposed move to Georgia and the disruption caused by the change in custody from the maternal grandmother is based on the faulty conclusion that the mother did not have a superior custody right over the father. Accordingly, we reverse the judgment of the juvenile court and remand this cause to that court for it to determine whether the father met his burden under Ex parte McLendon. The juvenile court should continue to apply the Alabama Parent-Child Relationship Protection Act to the present case.

In his special concurrence, Judge Thompson (joined by Judge Pittman), emphasized that the court’s opinion does not necessarily call for a different result.

In his special concurrence (joined by Judge Bryan), Judge Murdock invited an inquiry on remand whether the disruptive effect of changing custody to the father might be less because the father is remaining where the child has always been and the mother plans to move away.

2 comments

  1. Tiffany Ray says:

    Trying to gain custody back of my children, they have been out of my home for three years. We do not get to have any contact, have taken hair and urine screens and still can’t see them.We have been told that do to the McClendon law that we may not get them back from my husbands cousin who just has temporary custody. Is this true?

  2. Lee Borden says:

    I can understand your not having custody of the children; that makes sense. But I don’t understand your not having the opportunity to visit them. Are you sure you’ve tried to visit them and the judge has said no?

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