McLendon Alive and Well When Mom Wants Custody Back from Grandparents

Everyone who spends more than a few minutes studying the law of child custody knows all about the McLendon standard, first articulated in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). The McLendon standard is a rule of repose designed to protect children from too rapid or too frequent changes in their custodial arrangement. Technically, it requires that the party advocating a change in the custodial arrangement must prove to the court’s satisfaction that the change advocated “materially promotes” the child’s best interest and is so beneficial as to overcome the inherently disruptive effect of a change in custody. The question confronting the appeals court in M.B. and E.B. v. S.B., Case No. 2071105 (Ala. Civ. App. January 9, 2009) was whether the McLendon standard was the proper one to apply when a mother seeks return of custody to her after the court has awarded custody to non-parents.

The maternal grandparents had filed a complaint when the children were 7 and 5 alleging that the children were dependent and that their mother (their daughter) was unable to care for them because of her dependence on drugs and alcohol. After a home study found that the maternal grandparents could provide “a safe, stable, and secure environment” for the children, and upon the stipulation of the parties, the Jefferson Juvenile Court found the children to be dependent, awarded custody to the grandparents, and ordered visitation for the mother “as agreed to and arranged by the parties.”

A year later, the mother filed an emergency petition, alleging a “material and substantial change in circumstances, namely that the grandparents had refused to allow the mother to visit the children. A new home study found that the mother “was able to offer the children safety, security, and love.” After an ore tenus hearing, the juvenile court transferred custody back to the mother and awarded visitation rights to the grandparents. When the juvenile court denied the grandparents’ motion to alter, amend, or vacate, the grandparents appealed. The grandparents made two arguments on appeal, first that the juvenile court erred in not applying the McLendon standard, and second that proper application of the McLendon standard required that custody remained with the grandparents.

The mother argued that the McLendon standard did not apply because the juvenile court’s ruling because “all parties knew that the initial custody recommendation . . . was one for temporary custody.” The mother also argued that the testimony “overwhelmingly shows that [she] is a good mother.”

The appeals court first noted that the ore tenus rule (that the appeals court will normally defer to the trial court’s determination of questions of fact) is not applicable to this case, because the question of which standard to apply is one of law, not of fact. The appeals court noted too that nothing in the juvenile court’s original ruling says anything about the changes it ordered being “temporary.” In fact, says the appeals court, the record in that case specifically states that “this matter is CLOSED to further Court Review.”
Accordingly, the maternal grandparents are correct in asserting that the juvenile court was required to apply the McLendon standard in ruling on the mother’s custody-modification petition.

The appeals court searched the record for any finding of fact indicating the court was applying the McLendon standard.

The juvenile court’s July 18, 2008, judgment and the record on appeal are silent with respect to which standard the juvenile court applied in modifying custody. However, we conclude that, because the juvenile court wholly failed to employ any of the language set forth in the McLendon standard, the custody-modification standard applied by the juvenile court — whichever standard that may have been — was not the correct standard, which, as noted above, was the McLendon standard. Therefore, the juvenile court’s July 18, 2008, judgment is reversed, and the cause is remanded for proceedings consistent with this opinion.

This does not necessarily mean that the grandparents win and the mother loses. Presumably, the “proceedings consistent with this opinion” could include a finding of fact from the juvenile court on remand that the change advocated by the mother “will materially promote the child’s best interest and that the benefits of the requested change will more than offset the inherently disruptive effect caused by uprooting the child.”