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. Sherrie says:

    We recently sought custody of my stepchildren and lost. The judge used McLendon as the reason for leaving them in place. There father and I have been married for 7 years and have lived in the same house the entire time. Their mother has moved five times in the past 7 years and the children have attended 5 different school in the same period of time. We have had to pay to have her lights and water turned back on several times. Her house was foreclosed on and her and the children were forced to move in with her sister. Is this not considered uprooting these children? They now live in the same town that we live in and would not have to change schools, leave their friends, and are in the same area as their extended families; so I do not understand how a change of custody would be disruptive to the childrens lives. Oh, forgot to mention that the 13 year old child wants to come live with us.

  2. discouraged says:

    Why should the ruling of a parent v. grandparent set the standard for custody? This ruling has tied the hands of mothers and fathers everywhere in Alabama that really deserve custody, but cant afford to pay a lawyer to drudge though the system so a judge can really see which parent is the most loving, and not has the most money. This ruling has caused me and my family lots of dismay, worry, and anger. The supreme court should really take another look at this because this case was not about parent v. parent, but parent v. grandparent. If moving several times dose not constitute uprooting or disrupting a childs life, then neither should changing the custody from one parent to another. The change from one house to another would be the same for the child, just as if the CP were moving from one house to another.

  3. Gary Watts says:

    I have a question. I am trying to get at least partial physical custody for my child. I am going through a divorce and my wife does not want me to obtain partial physical custody because she says she does not make enough money to make it on her own. How hard is it for a man to obtain custody when going through a divorce. keep in mind that the grounds for divorce is her being unfaithful. I had to endure lies, cheating etc. Does the judge take into consideration who would be a better fit for the child? Also, she likes to go out and club on weekends. Please let me know your thoughts concerning this matter. Unlike some fathers out there I am really good and take the necessary time out with her and want the best for her. Again please let me know your thoughts and laws concerning this issue.

  4. Dawn says:

    I have recently been heard in an Alabama Court regarding custody of my son, and I’m still awaiting final judgment. I remarried after an 8 year time period to an elisted military officer thus necessitating a move. I have appropriately provided for my son during this time, and we will continue to adequately provide for him. His father and I had joint “legal” custody with me having sole physical custody. He filed his motion based on the AL Parent Child Relationship Protection Act citing it “not in the best interest” of my child to be relocated. In court, it was obviously proven he is not financially stable, living in an immoral situation, and cannot provide the wholesome environment that I have provided in the past, or can provide now, for my son. He also has another child who he has no visitation rights and presently pays no child support for. I also proved I have everything in place to continue to provide, even better, for my son. He proved nothing negative against me in court, except I was moving, and in fact testified to me always being a good mother and providing a good home for our child. If custody is changed, my child’s town of residence, school, etc, will be changed with him also. Will the McLendon rule take precedence in this situation or the AL Relocation Act? I’m not clearly understanding why it is taking the judge so long to make a ruling.

  5. Lee Borden says:

    I can’t speak to the timeframe, because I don’t know how long it has been and don’t know your judge. Your attorney should have a good idea how long it usually takes your judge to rule on a case like this.

    McLendon comes into play only if the judge finds that you have not overcome the presumption against relocation. If the judge finds that you’re overcome the presumption, you can move, and that’s that.

    You would hope that the judge would take into account that your husband is military and can’t control his relocation, but as you know that’s not a clear exception under Ala. Code §30-3-162(a), because you’re the parent rather than your husband.

  6. Dawn says:

    Thank you for your feedback. We are hoping for a quick resolution in order to put our family back together soon. (We have custody of my husband’s son also.) The lag in time for a decision has put us in turmoil with living in different places and splitting the care of our children, etc. I feel I have overcome the presumption against relocation citing many reasons why it is not in my child’s best interest to be removed from my care and put into an unstable, immoral enviroment… even if it means staying in Alabama. I see a major flaw with the Relocation Act in that the non-custodial parent is only supposed to be free from domestic violence. It takes a lot more than this to prove to be a good stable parent who can adequately provide for and nurture a child to be a good, productive member of society later in life. Thanks again for your input and this website. It has been very helpful.

  7. Me says:

    I was wondering if Dawn has received a judgement on her case yet. I am about to go through the same issue (husband in military)and I know rulings seem to be somewhat uniform.

  8. Doug Cook says:

    My ex was initially granted sole legal and physical custody of my children with no reason given for the ruling. No abuse was/is involved. She accused me of many things but all were born out in court to be totally baseless. I was working pro se for a while as I could not afford an attorney and in several of my motion filings I asked for joint legal custody, knowing that it would be a proverbial “cold day in hell” before this judge would allow joint physical. It was never granted with no reason given.My present attorney now says if we ask for joint legal in Shelby County, to where it was transferred from Montgomery, it would probably not be granted because of high standards of the Mclendon Doctrine. It appears to me that these standard only come into question where any kind of disruption of the children’s lives would occur, which would not be the case here. I called one of the Shelby County Schools to ask about coming down to see my children’s educational environment and to have lunch with them as she is now in violation of the court directive pertaining to my visitation and I have not seen my kids in 3 months. The first question from the counselor was “Do you have joint custody?” I have been given free and unfettered access to my children’s educational and medical records in the court order, but had a real problem with a private school in the past about this issue and they would not cooperate and told me never to darken their door again. Does anyone know anything about these issues?
    Doug

  9. Lee Borden says:

    You have full access to all records about your child, regardless of how the custody decree is worded. Share the joint custody statute with the counselor to demonstrate this. Eating lunch with the child is another matter.

  10. Dawn says:

    In answer to ME, and many others, who could be potentially thinking of relocating out of Alabama and presently have custody of their children. I did receive an order from the Judge. After everything we have been through, he granted custody to my ex-husband, ordered me to pay child support, and gave very vague visitation guidelines. In the order, it was written that he would be staying closer to “extended family”, thus the reason for the decision. The only extended family in the area is a half-sibling that he has no contact with. No mention of stability – moral, educational, or financial. Since the change in custody there have been multiple upsets, moving multiple times, school change, no communication regarding what is going on with my son, refusal to give phone numbers or current physical addresses, and constant interference with me communicating with my son both on the phone and via e-mail (he listens in on the phone and reads his e-mails). I have also had “restrictions” placed on when I can call, when I can visit, as there were no clear visitation guidelines included in the modification – “half of Christmas, and when I am in the State”. My guidelines and visitation are nothing compared to what he has had in the past. We have filed an appeal and are hoping for a reversal, or at least, better visitation guidelines to help with the control issue. I’ve never been through something so awful… say lots of prayers and have lots of faith.

  11. Dawn says:

    Attorney Borden… I have a question. I have written several blogs regarding my case. My ex-husband was granted custody of our son. He has since relocated several times, all within Alabama; but every time he has failed to notify me of the change and still will not provide me of a physical address for where my son is presently living, based on the fact he says this is a “temporary” house and I can use his P.O. box to mail anything to my son. He is not bound also by the Alabama Relocation Act to notify me in writing of any relocation, or does this Act only come into force if you are relocating out of the State. I’m confused as I have read of situation where the custodial parent has relocated within the State and then the non-custodial parent has filed motions based on the Act.

  12. Lee Borden says:

    The relocation act applies to every move of either parent of a minor child under the jurisdiction of Alabama courts, regardless of whether the child is moving out of state or within the state.

  13. Dawn says:

    Thank you for your answer. I knew I had to be entitled to the physical address for the residence of my child. He has no restraining order against me, and I am not a threat to him as I am miles away. I do feel I need to know where my son is living and more than a post office box in the event of an emergency. He was always granted this information when I was the custodial parent, and he was given proper notification by certified letter and in conversation when I was relocating out of the state.

  14. Sandra MacArthur says:

    I skimmed (read) the McLendon Doctrine in Alabama and the Alabama Relocatin Statute. It appears the law has been broken by the CP (biological father) living in Florence, AL by sending the child to a residential home in the State of MS without giving notice to the NCP (biological mother). The biological mother has been attempting to gain custody since June of 2006, a 09/19/06 Preliminary Court Hearing (we asked for temporary custody until a final hearing/denied)was attended the Judge said we needed to go to the place the child has been sent to, we did. The Judge asked us to get hard copy of the educational system where we live, we did so. The Final Hearing was set for 10/30/06 (cancelled at the eleventh hour?) reset for 12/14/06 (we continually get a big stall). This relocation is most disruptive to the child, if the biological mother gains custody the child would move back with her mother and live in the home she lived in the first 8 years of her life (mother voluntarily relinquished custody not relizing the father would not keep the child in his home). This child is diagnosed as Autistic, hard evidance has been provided to show the child would get the therepies needed for an Autisitc child….so far, the material has been ignored. We have an attorney in Florence, AL, we live in Sarasota, FL. This seems to be a blatant disregard for the educational needs of an Autistic Child….we are up against a brick wall! I plan to write to the AL State Bar. Thanks for listening! Maternal Grandmother, Sandra MacArthur
    By the way the place my granddaughter has been sent to does not allow any visits on any of the major holidays, i.e. Thanksgiving, Christmas, Easter, Mother’s Day, Father’s Day. After our visit to the place we were told we could come back in 4 months!

  15. for dawn says:

    The other parent regardless of where they relocate has to notify you with their physical address it is also a law that of their phone number were to change you are to be notified withing 10 days of changes…

    Nadia Reeves atl ga

  16. George Crumbine says:

    I am up against an arguement against a joint physical custodian arrangement for my autistic son: “These autistic children often require sameness of environment over sameness of routine which is contraindicative of an equal distribution of custodial time.” I strongly disagree with this, especially in my son’s case (he is very high functioning). He does not “require sameness of environment” anymore than a nuerotypical child. Do you know of any research or studies that would refute this assertion or support my position?

  17. armywife says:

    Dawn…… can you tell me what County in Al. this took place and maybe the Judge who ruled on your case.
    Thanks

  18. Dawn says:

    My appeal is still pending, therefore I prefer to not post it on a public blog. I will be happy to e-mail you personally. I will eventually go “public” as I feel a great injustice was done.

  19. NanMarie Curtis says:

    Ten months ago I was charged with neither a felony or a misdemeanor, but with 200 hours of community services. As a result of this my husband was awarded temporary custody of our son. Since then I have met all of the requirements of the court and awaiting my divorce hearing and custody hearing (Which will be on the same day). My question is my husband has lied on medical records stating he is divorced and also on our permanent financing of our home he lied on the morgage stating he was also divorced. I am wanting to know if the fact that he is lying and I have documentation of his lies, is this is a plus toward my case pending the custody of my son? Per the Mclendon ruling???

  20. Lee Borden says:

    Talk to your lawyer about how your judge views this. My impression is that any evidence that a person has lied, particularly in a sworn statement, affects the credibility of that person negatively in the eyes of the court but is far from dispositive. That is, the court could decide that your STBX is not particularly credible but still decide it’s in the child’s interest to live with him rather than you.

  21. NanMarie Curtis says:

    My husband left when my son was 3 months old without a trace or a good-bye & until I messed up I had full custody & he had never tried to take this from me. I made a mistake & I have had to deal with that daily, but as of today my husband is still messing up. I have worked hard the past 10 months to fix my mistakes, but his mistakes are still going on & it seems as though no one is worried about that! — IS THERE ANY JUSTICE FOR ME???? —
    I have had all of my “dirty laundry” exposed & he has sat back & marveled over that, again IS THERE ANY JUSTICE FOR ME??-

  22. Christy says:

    I was recently divorced in Feb. 2007. I signed joint custody with my X-husband having primary custody. To avoid dragging my kids through months of court battle. I knew my X-husband would not give me custody in order to “get me back” for leaving him. All along thinking he would do the right thing in raising them, agreeing to pay HIM child support. Since the divorce the kids stay with me 90% of the time.I have 3 kids all from the same marriage of 17 yrs. I pay for the kids needs when they are with me. My oldest son is turning rebellious (hes 15) He went from an A-B student to now having to go to summer school failing)My son does not want to stay with me, because his dad lets him do whatever he wants. The law has been called to his residence neighborhood. He also seems to be having some depression. I cannot get my X-husband to see the problem. I feel if something is not done my son will endanger himself. What can I do to get custody of my kids before it is to late.

  23. Lee Borden says:

    I think you’re in an extremely difficult situation. What judge wants to tell an angry 15 year old that he must live with his Mom when the child states without reservation that he would be better off where he is now? I frankly think your chances are poor, but you’re welcome to visit with a lawyer and see if the lawyer thinks there’s a way to overcome McLendon with these facts.

  24. Michele Knear says:

    My parents are getting divorced in Alabama. My husband, children and I live in Florida. I consider my father to be abusive and a potential risk of harm to my kids. Is there a way he could sue for visitation rights as a grandparent or, as their biological parent, would my husband and I be allowed the final say on whether or not we want him to see our children. Please advise.

  25. Lee Borden says:

    You seem to me, Michele, to have little to worry about. Judges rarely order visitation with anyone over the objection of both parents.

  26. Christopher says:

    My parents have joint custody, but my mother has physical custody of me. I visit my father every other weekend and holidays and summers. My father still resides in the same place as when my parents were married but my mother moved an hour away with her new husband. I do not get along with my stepfather at all. It was established in court that he is verbally and mentally abusive to me. I still have all my friends in the general vicinity of my dad’s house and the school I would attend if I moved with him has a better educational program and opportunities to the one at my mom’s. Also creating a problem for me, is the fact that my mother and step father have 2 houses that are an hour apart, and I never know which one we will be staying in.I am now 16 years old and want to move with my dad.It was also established that I have the maturity to make this decision. He is very able to provide for me and everything I need and we have a very close relationship. My mom will not willingly let me leave so we recently went to court about it. The judge wants to move me (I found out from sources) but he has to prove one part of the Mclendon Rule. We have already proved the other parts. The attorneys have until Monday to write a brief on this question:
    “Does a 16 year old who expresses a clear desire to live with the non-custodial parent constitute a change in circumstance to meet the McLendon Rule?”
    What do you think will be the best response to this? Is there some court cases that
    would help in the decision? Thank you for your help in this matter.

  27. Lee Borden says:

    My guess is that the answer to the question you ask is no, it’s not enough. The lawyer advocating a change will be on thin ice to argue that the child’s preference is enough by itself to overcome McLendon.

    However, you’ve already offered other factors that the judge could use to overcome McLendon, and there are probably others you haven’t mentioned. Make sure the lawyer mentions and summarizes ALL the factors. That’s really the way judges deal with McLendon.

  28. Christopher says:

    Is there a court case that you might know about that is similar to mine that you can refer me to?

  29. jennifer says:

    LEE,
    I HAVE A QUESTION , I AM CURRENTLY IN A DISPUTE OF CUSTODY IN THE FAMILY COURT OF JEFFERSON COUNTY OF BIRMINGHAM, MY EX HUSBAND CURRENTLY HAS TEMPORART CUSTODY OF OUR 3 BOYS AGES 7,6,2
    THE COURT ORDER SAID NOT TO QUESTION THE KIDS ABOUT ANYTHING TO DO WITH THE CASE..MY EX HUSBAND HAS BEEN ANSWERING QUESTIONS AND QUESTIONING THE KID ABOUT ME…
    I WAS UNDER SUPERVISED VISITS FOR OVER A YEAR BECAUSE OF HIS ALLEGATIONS, AND WHEN THEY CAME OUT TO BE NOT TRUE. I GOT UNSUPERVISED VISITS IN APRIL 2 2007
    WHEN I GOT UNSUPERVISED VISITS. HE AS THE TEMPORARY CUSTODIAN NEVER HARDLY EVER RETURNED A PHONE CALL, HE WOULD IGNORE ANYTHING TO DO WITH THE KIDS.
    HE IS CURRENLY DATING A 20 YR OLD GIRLFRIEND.AND JUST ENDED A RELATIONSHIP WITH ANOTHER WOMAN WHO WAS LIVING WITH HIM AND MY KIDS. HE MOVES IN ANY GIRL HE DATES..I THINK THIS IS VERY UNHEALTHY HAVING DIFFRENT WOMEN IN MY KIDS LIVES…
    MY EX IS CONTROLLING AND IF HE DOES NOT GET HIS WAY, HE WILL DO WHATEVER IT TAKES TO GET HIS WAY…ESPECIALLY THROUGH THE KIDS…

    WE ARE CURRENTLY TAKING FAMILY SESSIONS THROUGH A FAMILY COUNSELOR, AND EVERYTHING HAS BEEN GOING GREAT ,. UP UNTIL JULY 3 HE CALLED THE POLICE TO MY HOUSE WITH THE GAURDIAN AD LITEM AND MADE MORE FALSE ALLEGATIONS.. THEY NOW TOOK VISITS AWAY UNTIL ITS INVESTIGATED..
    WHEN I GOT MY KIDS , THEY WERE SENT TO BABYSITTERS, AND DAYCARE ALL THE TIME..NO TIME SPENT WITH THEM AT ALL.. KIDS HAS TOLD ME .THAT THEIR FATHER WOULD LEAVE THEM ALONE AT THE HOUSE TO GET ON THE BUS, THEY ARE 7 AND 6 ..HE WOULD LEAVE THEM FOR A HOUR ,AND HE WOULD GO TO WORK.. I HAVE REPORTED THIS AND NOTHING HAS BEEN DONE… HOW CAN I PROVE THAT HE IS COACHING THE KIDS ON WHAT TO SAY TO THE GAURDIAN AD LITEM AND TO OTHER PROFESSIONALS..? PLEASE GIVE ME SOME ADVICE

  30. Lee Borden says:

    I don’t have an answer for you. I think your only hope is that your judge is perceptive enough to tell who is consistent, truthful, and focused on the welfare of the children and who is not.

  31. tracy says:

    My 12 year old child decided last May to want to live with her father. I allowed the child her wishes and signed legal papers to give her father custody but still have joint legal. I have since moved to South Carolina, she came in May to visit for the summer and now wants to move here with me and my husband. What are my options? Do I have to pay another $1000.00 to change legal papers? My husband has children in Michigan and Michigan has the “Friend of the Court” where the case is first held by a referee and papers changed from the original agreemment free of charge. Is there such a thing in Alabama or can I do something in South Carolina. I do not have the funds to pay for the changing of the papers but, she does want to stay and not go back to her father permanently.

  32. Lee Borden says:

    I don’t know the facts of your case, but it sounds likely that any action to change custody now will need to be filed in MI unless Dad consents to moving it. I would start there.

  33. Jade says:

    I have a 4 year old daughter. I was never married, and I have always taken full care of her. The father and I have never been to court. He comes to visit approximately once a week or every other week, but in the past his visits have been sporadic (he would go for a few months without calling). After getting arrested for being passed out on pills in a parking lot, he spent 6 months in rehab when our child was 2. He is also a class C felon from before our child was born. I am a senior in college and have the opportunity to go to a promising PhD program in another state. I also have the oppurtunity to go to a great program in New Zealand, but I am afraid that might seem rather far-fetched. Is it likely that he will be able to prevent me from moving with our daughter to another state? Also, should I even attempt to go to New Zealand? I plan to follow all of the necessary reqirements in the relocation statute.

  34. Lee Borden says:

    Beats me. You know the routine. In the absence of domestic violence, the judge is required to presume that the move is not in your daughter’s best interest. To move to New Zealand (or anywhere more than 60 miles away), you would need to overcome that presumption by showing the advantages of the move and the relatively limited involvement Dad has had in her life.

  35. Jeff says:

    Lee,

    I filed for rights to my son 3 years ago in Jefferson County yet my son’s mothers attorney continues to delay depos and keeps us from going to court. We finally were able to get her discovery info last week after she was compeled by the court to give it to us. She has registered him under her married name in a private school across town when his given name and name on the birth certificate is my last name. My son is 11 years old and still cannot read, uses the bathroom in his pants and cannot even spell his given last name yet my attorney which is the best (Julie Calloway) from what I have been told keeps telling me that unless we can prove McClendon I cannot take him away if I do get to court. We were never married yet I have always paid child support even though there was never an order to do so and have every check to prove it. I feel like I keep getting shafted by the courts and like even though I can offer a better home life for him I cant get a break. What is your opinion on my situation??? I keep fighting and fighting for my rights but I cant help but feel like everything is stacked against me.

  36. marty says:

    I am filling for emergency hearing motion on the17th of this month
    How can I get this order done friday?

  37. Robin says:

    This is very complicated, please, bear with me…have son, now 9yrs, never wed to bio father. Our son has lived with me since a baby, father very violent, convicted domestic violence against me in 1999. In 2001, son 3yrs old was mauled by dog, severe injuries to face, head and back. Occurred during visit in direct care of father, wasn’t watching close enough, father was aware of vicious tied dog. Then, 3 months later, during wk end visit, father and family would not return son. Held son, hidden, I sought Legal Aide atty, got help and court order to retrieve child with County officers assist. Father had never paid child support, with the retrieval court order, judge added child support. Father enraged with PFA and child support order, made his own motion for custody, to keep from paying support. Goes to court 2 months later, (the day prior to court, my son during visit with father climbs chain link fence, hangs arm/wrist, requiring surgery), Judge grants me custody, support, father standard visitation. Other history, *(2yrs prior to son’s birth) father convicted felon, burglary, suspended 5yr sentence. Also, a busted drug dealer per narc informant buy, by Drug Task Force, pd $20,000 restitution to city, (deal made with THE $best$ local firm) no prison. *NOTE, I was not with him during this.

    From 2001-9/2005, father pd $4,500.xx in support, still very controlling, at times abusive, verbal & threats(I feared him). *Father saw our son when *he
    wanted to, sporadic and unannounced. Phone contact same way. I facilitated my son’s relationship with his fathers family. I strived for peace, prayed, and desparately tried…I thought I was doing the right thing.

    Sept 2005, father was granted immediate emergency custody per Ex Parte order, on allegations against me, including drug use, depression, having a “wrecked” house(*note* not dirty,was moving into new place, boxes,etc.&unorganized,yes)
    being violent(no past hx or documentation), unstable home due to multiple moves(new house was 3rd move since 2002, all local),limited low income $623.xx/mo.(I draw SSI, for BiPolar Disorder, symptoms difficulty sleeping with seasonal depression & post traumatic stress disorder due to domestic abuse…essentially controlled, no narcotics or anxiety med, total of 3 meds, see nurse every 4 mo., Dr. 2x/yr), allegated alcohol use, leaving son with father/family for extended periods of time and known *DHR involvement(*but,I pushed and “begged”, crying to them to help me pull my life together, child support from father, son need counseling for behavior, test son for dyslexis/learning disabilties, mentoring, and ALL they could do for us, I needed their help and asked.) Imagine the Ex Parte order, it read as if I were a drug user/abuser, mixing with alcohol, poverty, mentally disabled/crazy, violently uncontrollable, didn’t care for myself, son or home. It reads, face value that bad. The order is taken to son’s school by father and my son is his, I recieve papers days later. Add this, father has not seen son but, briefly, 4x in 2005, had just gotten out of court ordered drug rehab for crack and spent 7mo in jail for drug charges from 2002, I knew nothing of till after the Ex Parte.

    I hire $400.xx worth of atty, allowed no contact with my son. No immediate court date. I begin to try to pull my case together, on my own begin to gather evidence. Oct, 2005, I get raped at knife point, while trying to discover evidence on father in area of his last residence near drug house. I spend 7days in hospital from nervous breakdown, chastised by my atty and the court appointed GAL. The GAL states to me, “””It did not matter what he/father had done in his past, he had paid his debt and complied with courts by paying his fines, drug rehab, anger management, IOP, etc. She had observed he and my son, closely. He/father works hard and provides a stable home for his son, while living with his mother(whom has cancer). The cancer is not an issue. Living with his mother is a good thing, she loves her grandson, making for a more loving home. (Father has HIV) HIV is no reason to uproot your son, in this day and time, with the meds, a person can live a full productive life, and the chances of your son becoming infected is slim. We/court can’t/won’t discuss his HIV, we would be violating his right to privacy. (A total of 9 people live in a 2BR, where my son is living), Not a problem, in many cultures, more than 1 family share the same dwelling.”””(THERE’S MORE incidences than this, about GAL)

    Final Hearing was set April, 2006. I’m devastated, trying desparately to hold myself together. I don’t feel good about this, no one will listen. 4 days prior to court, my $400.xx atty calls, “I can’t be in court, Tues., I have to be in court in — county, but, you probably should be there, anyway. “I’m in tears, what do I do?” I ask myself. I’m scared to death, I don’t have an atty, I never did, and I know it. For the life of my child, I know it. I didn’t go to court that Tues., I know with my heart and soul, they would have tried that case and I would have lost, no counsel, except ME, to be devowered and digested by wolves. And my innocent child, the appetizer. My $400.xx atty calls me, “You lost your case by Default Judgement, I let him know, I already knew, that my daughter, a cop in — county, where he had to be in court, told me what he had to say…”If your mother would have shown up in court, the judge would have appointed her another atty.” My daughter was choice, “You, little Napoleon, why didn’t you tell her?” I let him know how I felt, “I hired you in my darkest hour, because, you advertised yourself and shook my hand in the children’s park after the big Easter Egg hunt, I had taken my son to, in 2004. You said, you were the “Christian answer to crime, vote for me DA, I will bring Justice and Christianity together.” He didn’t win. I told him, “Running for DA, was nothing but, a publicity stunt. Shame on you.” He said, “When you get $1500.xx more dollars, call me.” And, hung up.

    It was immediate, they, father let me talk to my son. It had been 7mo, since I had seen or talked to him, it was wonderfully heartwrenching, to hear his voice. He was so confused, almost afraid to talk to me. I had never felt more alone or lost or abused, but, I never let him feel my pain. But, it didn’t take long, and he was Austin, again. I felt the walls of time, separation and propaganda melting. My son knew it was me, he knew it was Mama, and I’d see him soon.

    END of PART I
    Thanks

  38. Dawn says:

    For all of those who followed my comments and the few that asked questions regarding my case… I’m pleased to say that after my child being taken away from me in an Elmore County court based on the Relocation Act and the fact that my husband was military and we had orders to relocate out of Alabama – I have now regained custody. He has been back with us since June and is once again extremely happy and well-adjusted, despite the turmoil he experienced for almost a year. Despite the appropriate evidence presented in the case, the judge made the call to take him away from a loving, nuturing, supportive family and place him with his dad and stepmom… We held fast and pressed ahead, staying in contact with my child with frequent international trips to visit, phone calls, and continued to seek what was best for him. Since coming back to live with us, my son has received ONE phone call, no e-mails, cards or letters, and no child support. Hopefully, judges will begin to take note when sufficient, appropriate evidence is presented and spare children from being put through what my child has just experienced.

  39. Brandon says:

    I have a three year old son whose mother has had custody of until March of this year. Last August she served me with her intent to relocate to Atlanta,Ga. At first the Judge allowed the move with strict directions to maintain the parant child relationship which had been an issue while she lived here. In March I was able to win Physical custody for three months while she had physical custody the following three months. The judge asked for a custody review to be held OCT. 3rd. The March order had no one as the custodial parent at the time of todays hearing. In todays hearing the judge was going to uphold the relocation statute ordering her to move back to Alabama but place custody with my ex-wife. she was unable to comply with that due to a divorce with child in Atlanta by a different man. The judge decided to leave a temporary order in place giving me physical custody for three months and giving her physical custody for three months with no one having custody before the next review. My question is how does Mclendon come into play if no one has custody of the child? thanks for your comments.

  40. Lee Borden says:

    It doesn’t. The judge will decide issues of custody at this next review based on the best interests of the child, with (presumably) no allegiance to a status quo.

  41. Trying to deal says:

    Have you ever known of the McLendon Doctrine to be used in a case where DHR has taken children away from the parents and the judge gave temporary custody to a family member? I have had custody of two children since August 2006. They were taken away from the parents due to drugs and reported abuse to the children. Since then they have had 2 known cases of domestic violence with the children not even there. My attorney has mentioned the McLendon Doctrine and I was just wondering if there had been a case where this has been used in this type of situation.

  42. Lee Borden says:

    Routinely. Your attorney can find scads of cases on this if it’s important to you, but the judge won’t need to see cases on a principle that’s this settled. In order to change custody back to Mom or Dad now, they’ll need to show that the benefit to the change is so powerful that it overcomes the inherently disruptive effect of the change and materially promotes the interests of the children. In practice, that usually translates to the need to show something dangerous or at least distasteful about the status quo.

  43. desperate says:

    My amount of hours at my job has been steadily declining since Oct. I have looked for another job in the surrounding area with no success. I am a professional and I have found another job 80 miles away. My ex and I have joint legal and physical with primary physical residence with me. Since notifying my ex of my intentions and petitioning the court for an emergency hearing and receiving a date, he now has filed a petition for change of custody. I have agreed to meet him halfway for the exchange of the children (ages 5 and 8) and willing to let him get them during school breaks and summer. He was supposed to have them 2 wks in June and 2 wks in July and never mentioned it. Also willing to let him have more time during holidays. This move is so I can have employment and support me and the kids. the school system they would be attending in the new area is excellent. what do you think my chances are for gaining permission to move and on maintaining custody? Thanks

  44. Lee Borden says:

    I don’t know anything about this situation that makes me change my normal approach to these situations, namely that it will be up to you to overcome the presumption that moving is not in the best interests of the children. It’s a tough standard, and my guess is that it will take more than simply showing you looked around for work before taking this new position. If I were you, I would take the list of child custody factors and build your narrative around EACH factor, so you can demonstrate to the court that you’ve done your homework and are focused on the welfare of the children.

  45. desperate says:

    We are going to court this Friday for permission to move. In the meantime, my ex has filed a petition for custody based on the fact that my current husband’s ex told my ex that my husband is a porn addict. this is totally a lie, no shred of truth. She continues to text my husband asking him if he’s happy and if he misses her. He does not respond. Neither have filed complaint with DHR to have the situation investigated which is what I would do if I were truly concerned. Also, my husband’s ex continues to let their 6 yr old spend the night 2 nights/wk and every other weekend. It is obvious to many that she is jealous and doesn’t want us to move on or move away. She only contacted my ex once the moving process was under way. My ex doesn’t know her, but he is so OCD that he runs with any info he gets, even if it’s untrue. What do you think his chances are of gaining custody?

  46. Tracy says:

    My husband has a daughter that he has visitaion with. The mother (they were never married) did not make my husband aware of this child until she was 11 months old. At that point she stated that the child COULD be his or 2 other men. (documented in court records) After a paternity test, my husband has paid child support even back child support when he was unaware of the child, and has had a stable job for 7 years. We have been married for 5 years and have 2 children of our own. The mother has full custody but has moved 17 times in 7 years and the child has attended 3 different schools. One of which she was asked to leave due to excess tardies. The mother also has changed jobs about 12 times in 7 years and we recently found out that she was charged in 2003 for defraud secured credit. She spent the night in jail but now has a alias warrant out on her. The child would be better off with my husband and I since she is exposed to different men spending the night, lack of power and water and no telling what else. How do we go about getting at least temperary custody without the mother knowing we are aware of the charge against her?

  47. Lee Borden says:

    First, are you sure you want to take on this burden? The child will demand lots of time and attention. You didn’t mention the ages of your children, but I assume they’re younger, which will mean that this unhappy, disadvantaged child will wield a great deal of influence with them. I would strongly recommend that you and Dad spend EXTENDED visitation time with the child (more than 3 weeks at a time) before making any attempt to change custody.

    If you’ve decided you really are willing to disrupt your family to care for this child, the original filing to change custody needn’t disclose the specific grounds for the change, but as a practical matter, I can’t imagine that you wouldn’t end up using it eventually to show the problems with the status quo.

  48. I’m aware of the relocation statute, McLendon doctrine, and the custody factors. My situation just doesn’t fit very well with these cases mentioned……attempting to shorten a long story…kids now 7 and 5..girl and boy……..parents separated (took a break while seeing each other as a family every weekend) 1.5yrs ago with dad in bham for his job and mom and kids in Ft Walton Beach, FL close to family..mom realized/thought best for kids to simply go back to bham regardless of the failed marriage but soon found out about dad’s apparently recent affair…mom was steadfast to still keep the fam together but dad refused…he asked for divorce but never filed..mom obtained atty and mom and dad filed uncontested divorce which gave both legal custody and mom was custodial parent..dad stay in bham and mom and kids stay in FWB meeting every other weekend 1/2 way (approx 140 miles each way for mom and dad)…this arrangement has continued since end of 2006 even though divorce file was rejected (poor choice of attys I suppose….who knew…mom figured if they’re licensed in AL then surely they could obtain a divorce decree for an uncontested divorce!!!)…mom and dad continued as agreed, for the most part….mom moved to georgia (gave notice but not the 45 days for certified) now dad is fighting for full custody or for mom and children to return to bham and mom and dad have true joint custody……dad’s original mistress moved into the house within weeks of mom confronting dad about affair and she’s lived there ever since (over a year now)…mom began dating man in ft lauderdale (they had previously known each other and met at a conference)…mom has been dating man for nearly a year…company mom worked for went under and man received promotion to georgia…mom decided best interest of children was to move to GA with soon to be husband in lieu of starting new job, moving, and 2nd grader changing schools locally…..mom keeps relationship going among dad and kids and continues to meet dad every other weekend..he drives his same 140miles and the mom now drives 193miles…………………so, mom keeping relationship the same, there was no divorce decree or even temporary custody “legally”…………….what are chances of dad getting his way (even though it’s not for best interest of children…it’s to get at mom and it’s obvious and can be proven) and mom and kids having to move back to bham after being gone from there for nearly 2yrs?…or worse yet…chances of dad being awarded full custody???? mom and dad have both retained counsel but nothing’s happened yet…….

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