Changing Child Custody After Divorce

Courts allow one of the parties to a divorce to ask after a divorce for a change in the living arrangements for a child of the divorce, but most states require a significant change in circumstances to avoid disrupting the child’s life unnecessarily. In Alabama, that requirement is embodied in the case of Ex parte McLendon, 455 So.2d 863 (Ala. 1984). The now-famous “McLendon standard” states that a parent seeking to change sole physical custody previously granted to the other parent must prove that (1) he or she is a fit custodian; (2) material changes affecting the child’s welfare have occurred; and (3) (the toughest test) the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child.

In the recent case of Gordon v Gordon, DR 2150775 (Ala. Civ. App. January 20, 2017), we see a textbook application of the McLendon standard. Mom and Dad had divorced while Mom was a medical resident. Their mediated agreement called for joint legal custody and sole physical custody for the father. Three years later Dad filed for an increase in child support and some unspecified changes to child custody, and Mom responded with her own claim for changing to joint physical custody. The trial court increased Mom’s child support and determined that she had failed to satisfy the McLendon standard.

The appeals court mentioned Mom’s argument that the McLendon standard “is based on a misconception, violates public policy, and is a barrier to custody awards that are in the best interest of the child.” Its only response was a footnote quoting its earlier opinions: “[T]he McLendon standard is not unconstitutional[, and] the McLendon standard has not been superseded by statute.” Gallant v. Gallant, 184 So.3d 387, 405 (Ala. Civ. App. 2014).

Mom had introduced the video deposition of her expert, Dr Linda Nielson, who said research in some 40 studies had consistently shown that children in “shared parenting” arrangements enjoyed better outcomes on issues like the quality of relationships with parents, behavior, mental health, and academic performance than children in other post-divorce arrangements, even in the presence of high conflict between the parents.

When asked specifically about the disruption of changing the child’s living arrangements from one parent to another,¬† Dr Nielson had stated: “It’s a change, but it does not have a negative outcome, otherwise, you would not find the positive outcomes that you did in the forty studies. All of the forty studies, those children changed from a –living with one parent to living with both parents. All forty studies, the children made a change, they switched.”

Mom argued that the expert’s videotape deposition constituted “undisputed factual and scientific evidence” demanding an award of joint physical custody. The appeals court rejected this argument, however. “When the evidence is presented to the trial court ore tenus, it is the trial court’s duty to determine the weight and credibility of the witnesses [impliedly including expert witnesses] and their testimony.” Smith v. Smith, 196 So.3d 1191, 1202 (Ala. Civ. App. 2015).

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