Child’s Preference Is Not Enough

Alabama’s rule on what it takes to support a change of custody is murky, but one principle is working its way through the muddle: the preference of a child for a change in custody is not enough to justify a change. You’ll find the latest illustration of this in Marusich v. Bright, Case No. 2050035 (Ala. Civ. App. June 30, 2006).

The facts are simple enough. Divorced parents, Mom got sole custody and Dad visitation. Dad files petition to modify custody based on his remarriage and the child’s stated desire to live with Dad. Trial court finds that Dad has met the standard of Ex parte McLendon and orders equal time parenting instead. Mom appeals.

The appeals court referenced its own decision in C.E. v C.C.H., 923 So. 2d 934 (Ala. Civ. App. 2005), in which it had reversed the trial court’s decision to change custody. Both C.E. and this case turn largely but not exclusively on the stated preference of the child in favor of the change. The appeals court in this case said:

The child testified that he wanted to live with the father; however, that testimony alone was insufficient to overcome the presumption in favor of the mother. See Glover v. Singleton, 598 So. 2d 995, 996 (Ala. Civ. App. 1992) (holding that when the child simply expresses a preference for one parent in a modification proceeding requiring the application of Ex parte McLendon, such a preference, without more, is insufficient to justify a change in custody).

In his concurring opinion, Justice Pittman quoted the Alabama Supreme Court’s statement that a change of custody “may be made only where the evidence discloses an obvious and overwhelming necessity for change.” Ex parte Peppers, 703 So. 2d 299, 302 (Ala. 1997).

Justice Murdock has argued in his concurring opinion in Smith v. Smith, 865 So. 2d 1207 (Ala. Civ. App. 1997) and in his dissenting opinion in this case that the “obvious and overwhelming” standard predates Ex parte McLendon and that it raises the bar too high in custody change cases. But the supreme court quoted it as recently as 1997 in Ex parte Peppers, and it appears to be the stated law in Alabama.

Lee’s Note: The lesson is clear to those who want to change custody: if all you can show is that the child wants a change, you’re not ready to file. Instead, you’ll need to go back to the list of Alabama custody factors  and search for other justification. Even if the preference of the child is enough to convince the trial court, the trial court’s ruling is vulnerable to reversal.

One comment

  1. shirley says:

    we’ve just been through a dependency/custody battle–we are non relatives-this child we have had for over 13 years-his father had seen the child less than 5 times in lifetime-until last 6 months-custody was just given to father-we get 2nd and 4th week-ends-4 days during christmas and 2 weeks during the summer-we can not understand how the judge justified giving custody to father–councelor stated for child to come back to his environment-child express several times he wanted to come hack to his home–can you give me an appeal case i can base this on

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