After an unfortunate journey into a land where a non-custodial parent could not change custody of a child without showing an “overwhelming necessity” to make the change, the Alabama law seems firmly settled now that the original McLendon standard prevails. The latest case from the Alabama Supreme Court continues the process of clearing up the confusion. Ex parte Russell, Case No. 1070726 (Ala. January 16, 2009). The facts are pretty ordinary (Mom and Dad both substance abusers, Mom more recently and more intensely than Dad, some shouting about where the child should live, etc.); what makes this one worth reading is the Supreme Court’s statement of the law.
The original divorce granted Mom and Dad joint legal custody, granted Mom primary physical custody, and granted Dad liberal visitation rights, which Dad used consistently. When Mom’s drug use increased and she sought treatment, the parties agreed for the child to live with Dad. When she sought to have the child return to her after treatment, Dad sought primary physical custody. After hearing, the trial court granted his request. On Mom’s appeal, the Court of Appeals reversed on the grounds that the evidence before the trial court did not demonstrate an “overwhelming necessity” to make a change. Russell v. Russell, Case No. 2050655 (Ala. Civ. App. February 1, 2008). In doing so, the Court of Appeals followed a previous line of cases that have used that expression as a barrier for making changes in child custody. Martin v. Martin, 961 So. 2d 83 (Ala. 2006); Ex parte Peppers, 703 So. 2d 299 (Ala. 1997); Klapal v. Brannon, 610 So. 2d 1167 (Ala. Civ. App. 1992); Whitfield v. Whitfield, 570 So. 2d 700 (Ala. Civ. App. 700 (Ala. Civ. App. 1990); Braswell v. Braswell, 460 So. 2d 1139 (Ala. Civ. App. 1984); Munchus v. Munchus, 412 So. 2d 794 (Ala. Civ. App. 1982).
The week after the Court of Appeals issued its opinion, the Alabama Supreme Court issued its opinion in Ex parte Cleghorn, 993 So. 2d 462 (Ala. 2008), in which it specifically struck down the “overwhelming necessity” requirement:
Our decision in Ex parte McLendon provides that a party seeking a change in custody must show that the change ‘will materially promote [the] child’s welfare.’ 455 So. 2d at 865. The McLendon standard is a ‘rule of repose,’ meant to minimize disruptive changes of custody because this Court presumes that stability is inherently more beneficial to a child than disruption. Ex parte McLendon, 455 So. 2d at 865. It is founded on the longstanding principle that ‘[i]t is the court’s duty to scrupulously guard and protect the interests of children. And in the context of child-custody proceedings, the dominant consideration is always the best interest of the child.’ Ex parte Fann, 810 So. 2d 631, 638 (Ala. 2001). See also McCartney v. McCartney, [Ms. 2041048, July 27, 2007] ___ So. 2d ___, ___, 2007 Ala. Civ. App. LEXIS 497 (Ala. Civ. App. 2007) (‘”The controlling consideration in child-custody matters is always the best interests of the child.”‘ (quoting Patrick v. Williams, 952 So. 2d 1131, 1140 (Ala. Civ. App. 2006))). The burden imposed by the McLendon standard is typically a heavy one, recognizing the importance of stability, but the overwhelming-necessity requirement places a nearly insurmountable burden on the party seeking a modification of custody, and in doing so, elevates stability above the best interests of the child.
We reaffirm the McLendon standard as the standard to be applied when a party seeks a modification of custody, and we hold that the decision of the Court of Civil Appeals here conflicts with Ex parte McLendon. Moreover, insofar as they suggest that a party seeking a modification of a custody order must prove an overwhelming necessity for the change in custody, we hereby overrule Ex parte Martin and Ex parte Peppers. 993 So. 2d at 468-69.
The Supreme Court reversed the Court of Appeals ruling and remanded the case. The Supreme Court noted that, since its ruling in Cleghorn, the Court of Appeals had acknowledged that a non-custodial parent was no longer required to show an “overwhelming necessity” when petitioning for a change in child custody.
So for clarity, here is the applicable standard (as of today, anyway) for making a change in child custody in Alabama once a court has ruled: the non-custodial parent must prove to the court’s satisfaction (a) that material changes affecting the child’s welfare since the previous decree demonstrate that a change in child custody materially promotes the best interest of the child, and (b) that the positive good brought about by the modification more than offsets the inherently disruptive effect of uprooting the child.