Many clients seek out an attorney to give them advice on child custody. All too often this is after the initial divorce of the parties and therefore certain conditions do apply.
Since Alabama no longer recognizes a “tender years” approach to determining custody both parties are presumed equally competent parents and capable of having custody of the children. Thus the “best interest of the child/children” standard is applied. Alabama Courts do not favor a true shared custody arrangement in that it fails to be feasible with school age children and numerous appellate decisions discourage the concept due to it not being in the best interests of the children despite what the parent’s desire.
In the case of modification of custody post-divorce an additional standard is applied. This standard was forged in an actual appellate case and has become known as the McClendon standard or rule. The McClendon standard still requires that the best interest of the child is paramount but also requires that the party seeking to change or modify the custody establish that the benefit of changing custody from one parent to another is so great that it outweighs any detrimental effect that the change in custody would cause to the minor child.
While that may seem to be easy enough to establish; it is not. A mere change in the non-custodial parent’s circumstances for the better will not suffice. Often times the custodial parent must be ineffective in providing for and taking care of the minor child. That coupled with the non-custodial parent’s ability, desire and willingness to take custody may give them the edge needed to cross the huge hurdle that is McClendon.
