Often, divorced parents become dissatisfied with custody arrangements that are put in place by their divorce court years after the order was entered. Whether one parent feels that the other parent is not keeping up their end of parental responsibility, or a parent who does not currently have any physical custodial rights now wants them, there are many reasons that a parent may be interested in having a custody order modified. Depending on what the specific circumstances are, however, the approach may differ from case to case.
In 1984, the Alabama Supreme Court established a rule, called the McLendon standard, by which petitions for custody modifications should be reviewed; if the original order was not one for joint custody, and the noncustodial parent seeks to modify the order, then that parent must establish that the positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. In addition, that parent seeking the change must show not only that he or she is a fit parent, but also that the change of custody materially promotes the child’s best interest and welfare.
Essentially, the moving party needs to be able to show a material change in circumstances regarding the child, and must also be able to show that modifying custody would promote the child’s best interests. A material change in circumstances can involve any number of factors, but can include the following: the custodial parent loses his or her job, is not able to properly care for the child, and refuses to seek employment; the custodial parent develops a crippling drug problem, and exposes the child to this problem; the home environment is otherwise tremendously disturbed by the neglect or intentional action of the custodial parent; the custodial parent constantly moves from home to home and there is no stable home environment; etc. Of course, a noncustodial parent with a stable job, established home residence, and ability to provide a loving, nurturing home environment will have those things in his or her favor when petitioning for such a modification. Proving these facts in court would go a long way in determining whether modifying custody would, in fact, meet this heightened burden.
If there has never been a custody order entered by any court, then the McLendon standard would not apply. Instead, the “best interests” standard would apply. That standard is as simple as it sounds; the court will look at whether a specific award of custody will advance the best interests of the child. This standard also would apply to a court’s review of a custody arrangement where the parents share joint legal and joint physical custody.
Any noncustodial parent seeking to have a prior child custody order modified should take note of these two tests; depending on the specific situation, one or the other would apply. If you are seeking a child custody modification, you need to speak to an experienced family law attorney. Please don’t hesitate to contact our offices today for a consultation.