Still Scrubbing “Overwhelming Necessity” from the McLendon Standard for Changing Child Custody

After an unfortunate journey into a land where a non-custodial parent could not change custody of a child without showing an “overwhelming necessity” to make the change, the Alabama law seems firmly settled now that the original McLendon standard prevails. The latest case from the Alabama Supreme Court continues the process of clearing up the confusion. Ex parte Russell, Case No. 1070726 (Ala. January 16, 2009). The facts are pretty ordinary (Mom and Dad both substance abusers, Mom more recently and more intensely than Dad, some shouting about where the child should live, etc.); what makes this one worth reading is the Supreme Court’s statement of the law.

The original divorce granted Mom and Dad joint legal custody, granted Mom primary physical custody, and granted Dad liberal visitation rights, which Dad used consistently. When Mom’s drug use increased and she sought treatment, the parties agreed for the child to live with Dad. When she sought to have the child return to her after treatment, Dad sought primary physical custody. After hearing, the trial court granted his request. On Mom’s appeal, the Court of Appeals reversed on the grounds that the evidence before the trial court did not demonstrate an “overwhelming necessity” to make a change. Russell v. Russell, Case No. 2050655 (Ala. Civ. App. February 1, 2008). In doing so, the Court of Appeals followed a previous line of cases that have used that expression as a barrier for making changes in child custody. Martin v. Martin, 961 So. 2d 83 (Ala. 2006); Ex parte Peppers, 703 So. 2d 299 (Ala. 1997); Klapal v. Brannon, 610 So. 2d 1167 (Ala. Civ. App. 1992); Whitfield v. Whitfield, 570 So. 2d 700 (Ala. Civ. App. 700 (Ala. Civ. App. 1990); Braswell v. Braswell, 460 So. 2d 1139 (Ala. Civ. App. 1984); Munchus v. Munchus, 412 So. 2d 794 (Ala. Civ. App. 1982).

The week after the Court of Appeals issued its opinion, the Alabama Supreme Court issued its opinion in Ex parte Cleghorn, 993 So. 2d 462 (Ala. 2008), in which it specifically struck down the “overwhelming necessity” requirement:

Our decision in Ex parte McLendon provides that a party seeking a change in custody must show that the change ‘will materially promote [the] child’s welfare.’ 455 So. 2d at 865. The McLendon standard is a ‘rule of repose,’ meant to minimize disruptive changes of custody because this Court presumes that stability is inherently more beneficial to a child than disruption. Ex parte McLendon, 455 So. 2d at 865. It is founded on the longstanding principle that ‘[i]t is the court’s duty to scrupulously guard and protect the interests of children. And in the context of child-custody proceedings, the dominant consideration is always the best interest of the child.’ Ex parte Fann, 810 So. 2d 631, 638 (Ala. 2001). See also McCartney v. McCartney, [Ms. 2041048, July 27, 2007] ___ So. 2d ___, ___, 2007 Ala. Civ. App. LEXIS 497 (Ala. Civ. App. 2007) (‘”The controlling consideration in child-custody matters is always the best interests of the child.”‘ (quoting Patrick v. Williams, 952 So. 2d 1131, 1140 (Ala. Civ. App. 2006))). The burden imposed by the McLendon standard is typically a heavy one, recognizing the importance of stability, but the overwhelming-necessity requirement places a nearly insurmountable burden on the party seeking a modification of custody, and in doing so, elevates stability above the best interests of the child.

We reaffirm the McLendon standard as the standard to be applied when a party seeks a modification of custody, and we hold that the decision of the Court of Civil Appeals here conflicts with Ex parte McLendon. Moreover, insofar as they suggest that a party seeking a modification of a custody order must prove an overwhelming necessity for the change in custody, we hereby overrule Ex parte Martin and Ex parte Peppers. 993 So. 2d at 468-69.

The Supreme Court reversed the Court of Appeals ruling and remanded the case. The Supreme Court noted that, since its ruling in Cleghorn, the Court of Appeals had acknowledged that a non-custodial parent was no longer required to show an “overwhelming necessity” when petitioning for a change in child custody.

So for clarity, here is the applicable standard (as of today, anyway) for making a change in child custody in Alabama once a court has ruled: the non-custodial parent must prove to the court’s satisfaction (a) that material changes affecting the child’s welfare since the previous decree demonstrate that a change in child custody materially promotes the best interest of the child, and (b) that the positive good brought about by the modification more than offsets the inherently disruptive effect of uprooting the child.

1 comment to Still Scrubbing “Overwhelming Necessity” from the McLendon Standard for Changing Child Custody

  • Phillip Doe

    These are some of the things I have experienced with my ex…yet my attorney tells me I still have an uphill battle in overcoming the McLendon Standard.

    Key Issues

    • I was forced to sign for an apartment for ex-wife and the children under the threat that she was otherwise going to move in with her boyfriend at the time. This was after she was forced to sell the home she received in the divorce settlement because it was in foreclosure. She never made a payment on the mortgage in 2007 despite having made over $55,000.00 that year in child support and income. I made the first payment on the mortgage because she did not have the money and to my knowledge she never made a subsequent payment.
    • I have been forced to pay her rent to keep her from being evicted nine times in the past seventeen months. I have spent over $8,000.00 during that time period in order to ensure that my child had a place to live. She moved out and left me with the lease obligation. She was two months past due on the rent and I had to pay the rent through May 17, 2009. I am also responsible for over $1,600.00 in damages to the apartment.
    • I have been forced to pay out over $1,000.00 to her over the past fourteen months because of her inability to adequately provide the children with enough food in the home. She does not keep what I consider to be the bare necessities in the home to ensure my son eats properly. Her other children are primarily fed by her other ex-husband because of this issue even though he pays her over $1,200.00 a month in child support.
    • Her utilities are constantly being disconnected because she fails to pay them for months. I have had to keep my son up to a week at a time because she did not have water service in her apartment. She stayed with her boyfriend during this time period.
    • I have paid out over $3,800.00 in delinquent daycare bills over the past 14 months in order to maintain a spot for my son so he has stability. She just refuses to keep the bill current even though it is factored into her child support. I have paid out more than that since our divorce but I have that amount referenced on the financial spreadsheet. She is currently over $1,000.00 delinquent.
    • I have paid her car note on several occasions in the past year when they were going to repossess it.
    • She extorts money from me for these types of things by using visitation as a threat. She also has threatened to remove him from the daycare/school facility he has been at for over two years if I did not pay the bills. She knows that I do not want to have his life disrupted and I will do what is best for my child. She uses this to manipulate me into paying debt that she is legally responsible for. My son has been at this facility for two and a half years. He has friendships established and is very comfortable there. I have relationships with parents and administrators there. He is already enrolled and accepted to attend the K through 8th grade facility at this school.
    • I have attended every school function in the past two and a half years. She has attended one. She always has an excuse for missing parent events. I have attended between thirty and forty birthday parties of children in my son’s class. She has never attended a single party.
    • Since our divorce I have taken my son to the doctor whenever he was sick. She does not take him and will not take the time away from work to do so. She has never taken him to the dentist so I am in the process of setting up his first appointment.
    • She has not purchased my son a single birthday or Christmas present since our divorce. I have had to provide gifts for my home and hers so he has a Christmas at her house as well.
    • She does not provide my son with any type of clothing or shoes. I have purchased every single item that the child has over the past two years. He has more than adequate clothing but she will still send him to school sometimes in things that do not fit properly or are not clean.
    • I pay for everything for my son that he needs because she refuses to do so. From clothes, birthday parties, doctor’s visits, medication, haircuts etc. She pays for absolutely nothing for him. She has told me that this is the price I will pay for the rest of my life because of our divorce.
    • She has taken money that I have given her for things for my son and spent it on herself. An example is when I gave her a gift card to purchase some clothes for my son, she purchased herself a pair of sunglasses. For this reason I purchase everything myself whenever he needs something.
    • She does not maintain a bank account because she winds up writing bad checks and the banks close the accounts because of a negative balance.
    • She has boyfriends sleeping over and has my son sleeping in the bed with them at the same time.
    • She leaves the children unattended at all hours of the night while hunting her boyfriend if she cannot reach him on the phone. This happens frequently between the hours of 1am and 4am. She has left him at home all night on occasion because he has mentioned this to me.
    • She does not have my son on what I would consider an appropriate sleep schedule for a child his (5) age. She keeps him up well past 10pm. She has people over well past that hour or worse has him at other people’s house until the late hours of the night.
    • She cannot keep a stable job. She has had four jobs in the two and a half years that we have been apart and two jobs in the past year of our divorce. She is in danger of losing her current job and it is only a matter of when not if. She quits jobs whenever her job itself is in jeopardy. She does not show up for work on time and leaves early frequently. She has taken advances and borrowed money from her employers everywhere she has been in the past. Her current job is in jeopardy because she has allowed her feud with her ex boyfriend to spill over into her job. She told me she is in danger of being fired.
    • She is currently almost 30 days past due on her rent. She just moved into the house about 45 days ago. I am not on the lease this time so I am going to refuse to step in and pay her rent. It is only a matter of time before she is evicted.
    • She spends her money on things that are not necessities. Things like excessive cell phone bills, children’s cell phones, expensive laptops, $100 hair cuts, manicures, expensive clothes and parting with some of her single friends. She will do this when she has not bought food, paid rent or daycare expenses. She never provides any of her children with anything. Her other ex-husband and I provide absolutely everything for the children.
    • She has survived by taking money from her boyfriend (over $10,000.00 last year), ex-husbands, employers as well as friends and family. Not only does she not provide for my son she does the exact same things listed above with her other children that she is responsible for.
    • She does not have my son to school on time or on time for speech therapy appointments. This is documented in the school log. I have him to school everyday between 7:30 and 7:45am. She will vary between the hours on average of 9:30am and 11:00am and sometimes as late as 1:00pm. Her other children have been habitually tardy for school when she was the party responsible for getting them there on time.
    • Her priorities are her social life, partying and boyfriends. She does not provide for my son or any of her children. The irresponsible manner she handles her finances has caused a tremendous financial burden on me and my ability to provide for my son. I could have prepaid an entire four-year college education fund with the money that I have paid out in excess of my child support over the last two years.
    • She is currently threatening me that if I use a particular person to construct my home that she will withhold visitation rights. She does things like this constantly. I was going to allow her to handle the mortgage for me so she would get the commission but she is even threatening me with making sure I do not get financing so I will more than likely let someone else handle it.
    • She does not carry insurance on her vehicle at all. She has driven my son around in a vehicle that was unsafe according to her because she said she did not have the means to have the brakes repaired.
    • She went five weeks without a refrigerator when she moved into the new house she leased. She lied about getting one when I questioned how she was keeping adequate food in the home without one.
    • I have my son every Thursday and then every other Thursday through Monday. This amounts to 130 days per year. With the extra holiday time, extra time in the summer and all of the times that I keep so she can attend some social function I already have him at a minimum of 170 nights per year. I have never missed any of my scheduled time with my son. I actually take him whenever she wants to do anything so I can spend time with him. That and I always take him to any type of event like birthday parties or anything that falls outside of my normal time with him. She NEVER takes him to anything like this.
    • She has been consumed with stalking her ex-boyfriend since their breakup. She has always done the same thing with men in her past including me. He has had to call the police to his house to have her removed from the property on two occasions. He has told her if she showed up at his house again in the middle of the night while the children were at home that he would report her to DHR. She has harassed his thirteen year old daughter by calling her on her cell phone while in school. She has told her that her Father was a whore and that she was pregnant a few months ago and that it was his fault that she miscarried after about six to eight weeks. he has had to seek legal advice on how to keep her from contacting his minor child.

    • Her ex-husband is will to testify on my behalf and bring to light the exact same things that I experience. He has been going through the same issues for over eight years. The children that stay with her have problems in school and he is willing to elaborate on all of the problems.
    • His wife, a teacher, is willing to testify about her experiences with my ex and why she firmly believes that she is extremely unfit as a parent.
    • Her ex-boyfriend can be called on to confirm things like sleepovers and her leaving the children unattended in the middle of the night while she came to his house unannounced to try and find him if he did not answer his phone. How she has threatened to committ suicide on numerous occassions.
    • I have friends willing to testify on my behalf as to my abilities as a single parent and my determination and willingness to provide a stable household for my son.I have had the same job for three years and the same residence since I moved out. I am currently building a home for my son and me.
    • People at her previous places of employment can be called upon to confirm how she neglected her responsibilities at work in order to pursue outside relationships and a social life. They can confirm the fact that she was never on time for work and rarely in the office doing the things necessary to generate an income in the mortgage industry.

    I just want my son to have a stable and saife household. I am the one who provides for him and looks out for his best interest. I am the one that will ensure he recieves a good education as well as planning for the cost of attending college. My desire to keep my son’s life from being disrupted because of his Mother’s refusal to be financiall responsible has and will continue to hinder my ability to provide these things for my child.

    Do I have any hope?

    Concerned Father.

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