Standard for Changing Joint Custody

The Alabama Court of Civil Appeals has reversed a trial court judgment declining to change custody on the grounds that neither parent proved that the other was “unfit.” In Faust v Knowles, Case No. 2040456 (Ala. Civ. App. April 28, 2006), the appeals court reversed, saying the trial court should have looked instead to the best interest of the children.

The parties had joint custody of their two children and roughly equal time parenting. About 2 1/2 years after the divorce, the mother and then the father asked for sole custody. After a lengthy and rancorous trial, the trial court said this in its opinion:

The trial in this case generated considerably more heat than light onto issues pleaded by the parties. Suffice it to say that neither party has demonstrated that the other is unfit to be custodian for the minor children. As a result of the lack of evidence justifying a modification of the [divorce judgment] with regard to the initial order concerning custody, the court declines to modify the custody provisions ….

The appeals court said the trial court should have followed Ex parte Couch, 521 So. 2d 987 (Ala. 1988), “which held that the best-interest standard applies to the modification of an existing joint-custody arrangement.” The appeals court reversed and remanded with directions to reconsider the evidence in light of the “best interest” standard and to determine whether a modification of custody is warranted.

The mother had also argued that the trial court erred in ordering her to pay child support. In light of the reversal, the appeals court pretermitted (decided not to address) any discussion of child support.

4 comments

  1. Anita Braswell says:

    what about if one parent has full custody, the child now 15
    wants to split time between both parents. But because of the
    McClendon rule it is impossible to change custody to joint custody?

  2. Mrs. Knowles says:

    You actually had to live in this ongoing nightmare to believe it. I hope noone is
    is using this case to set any standard.

  3. Ron Whitworth says:

    McClendon is being used to keep alot of divorce lawyers making big bank deposits. Our system is the nightmare. And we pay taxes to fund these mickey mouse courts.

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