Does Committing a Crime Satisfy the McLendon Standard for Changing Custody?

Most everybody who deals with custody issues in Alabama knows about the McLendon standard. Arising from the case of Ex parte McLendon, 455 So.2d 863 (Ala. 1984), the McLendon standard (after judicial reinterpretation and clarification over the years), now provides that a noncustodial parent seeking to change custody must show three things: (1) that he or she is now a fit parent; (2) that material change affecting the child’s welfare has occurred; and (3) (and this is the toughest) the advantage of changing custody will more than offset the disruptive effect of uprooting the child.

The father in this case, Weaver v Jefferson, Case No. 2160163 (Ala. Civ. App. May 19, 2017), had been awarded “primary physical custody” in the parties’ divorce. The appeals court interpreted this as sole physical custody, making its displeasure at the use of the term clear. “The term ‘primary’ physical custody is an incorrect term and is not recognized in Alabama law.”

When the father was arrested in Georgia and charged by his utility company with theft of services, the mother filed for an emergency modification and later a permanent modification of custody. The trial court granted her petition. As grounds, the trial court cited “a catastrophic medical condition of a new child” [the father had a new son, half brother to the child at issue here, who had suffered brain, kidney, and liver damage and who required considerable continuing medical attention]. The trial court also cited “some pending out-of-state legal issues” [presumably the theft of service charge]. It is important to note that even the mother’s lawyer acknowledged that the theft of services charge was unlikely to involve prison time for the father. The father appealed.

The appeals court recited the McLendon standard set forth above. It acknowledged that the mother had clearly met test number one by demonstrating that she had stabilized her home life and was now a fit parent for the child. But it found no evidence to support the trial court on either of the other two tests: “Although the mother demonstrated that she is a fit custodian, the mother presented no evidence demonstrating that the medical needs of the child’s half brother or the father’s ongoing legal issues in Georgia had affected the welfare of the child or that the positive good brought about by the change in the child’s custody would more than offset the disruptive effect of uprooting the child.”

In the absence of such evidence, the appeals court reversed the trial court and remanded with instructions that it issue an order “consistent with this opinion,” presumably an order that the child will continue living with the father.

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