Modification: The Mcclendon Standard

Modification of CustodyThe papers have been signed. Everyone has made some sort of compromise meaning that everyone’s happy to a degree and unhappy to a degree. At this point, the parties have stopped fighting aggressively. It’s not peaceful, but the tension is bearable. This is how most divorces end. There is fighting until both parties decide that it’s easier to settle. Normally, this is either right outside the courtroom before the case goes to trial or through frantic phone calls back and forth between the attorneys right before the case goes to trial. The truth of the matter is that everyone wants to take the case to trial, until they actually have to take off work and sit through the hours and hours of questions back and forth. After everything is signed and all is said and done, the parties go along their merry separate ways. Then comes the first post-divorce agreement visitation fight, and, inevitably, we get this question: “So, like, if I want to take him (or her) back to court to change this custody agreement. What do I need to do?”

In these cases (which is very often) we have to explain the McClendon Standard (Provided the parties decide on one of the parents being the primary physical custodian or the court deems one parent the physical custodian). This standard is well known to domestic attorneys in Alabama. It is based off of the case Ex parte McClendon. This standard is that “the positive good brought by a modification must more than offset the inherently disruptive effect caused by uprooting the child. The parent seeking the custody change must show not only that she is fit, but also that the change of custody materially promotes the child’s best interest and welfare.” 455 So. 2d 863, 865-866 (Ala. 1984).

Sure, that seems straight forward enough, but what does it really mean? It means that you have this scale the judge must weigh. Good of the move & the stability of safety of the child’s new home v. the disruption to their routine. (Benefit of Change in Custody + Stability of new home + danger/or negative facts of staying in current home – disruptiveness to child’s routine & life = judicial decision.) Conversely, if there isn’t a true physical custodian, if the parties have a joint legal and physical custody agreement, then you don’t have to apply the McClendon Standard. At that point, you go back to the “best interests” standard in which you started when the divorce began. (Would it be in the child’s best interests for the court to modify the agreement?)

In short, applying that standard and overcoming is not done easily. It is the court and the law’s way of ensuring that children are equipped with the stability needed for a proper upbringing. However, it also provides a means for parents to protect their children if the custodial parent is not properly providing a stable safe home for their child. The legal realm is quite fond of keeping the children out of the legal system regardless of whether the parents can’t stop fighting.

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