Child Custody Modification Cases Carry A Heavy Burden Of Proofchild custody modification

Child custody modification cases involving situations where divorced parents have joint legal custody, carry a strict and heavy burden of proof in order to obtain a change in custody.


The standard in Alabama was set in the 1984 case of Ex parte McLendon. The standard requires the parent seeking a custody change to demonstrate  the following things in or to obtain a child custody modification:

  • A material change in the circumstances has occurred since the previous judgment regarding custody.
  • The child’s best interest will be materially promoted by a change in custody.
  • The benefits of the change in custody will more than offset the inherent disruptive effect which results from changing custody.

The purpose behind such a strict standard is to minimize the disruptive changes in custody.  Alabama divorce courts presume that stability is inherently more beneficial to a child than disruption. The burden is a difficult one, because simply showing that the child would be better off with a custody change is not enough. The person seeking a change in custody must also show that the betterment of the child’s situation will overcome the disruption that will certainly occur with a change in custody.


The trial court judge hears the evidence regarding a change in custody and is the sole decision-maker. The trial court judge is given great discretion in making rulings regarding child custody and changes in child custody. On appeal their decision is presumed to be correct under a doctrine called ore tenus. Under this doctrine, the appellate court presumes that the trial court was able to see and hear the witnesses, and judge their demeanor, truthfulness, and knowledge. Based on this presumption the trial court is presumed to be in the best position to make the decision. In order to overturn a trial court’s decision regarding custody on appeal, the person appealing must show that there is no evidence supporting the decision or that the trial court abused its discretion.


Factors that trial court may look to in making the decision are numerous. Some of the common factors include: the respective home environments offered by the parties, the nature and relationship of the parties to the people around them and in their lives, the child’s needs, the child’s age, the child’s health, the age character stability mental and physical health of the parties the interpersonal relationships between the child and each parent, whether either parent has interfered with the relationship between the other parent and child, and where appropriate the wishes of the child. This list is by no means exclusive. Other evidence may be considered by the court.


A very recent court decision by the Alabama court of civil appeals illustrates the type of situation in which a change in custody may be warranted. In Jones v. McCoy, ___So.3d___, 2013 WL 4873471 Sept. 13, 2013 the child’s mother had primary physical custody, and she lived in Alabama. The child’s father lived in Florida. The father filed seeking a change in custody. The evidence cited by the court which supported a change in custody included testimony from the 15-year-old child that while he lived with the mother he was not allowed to leave the driveway of the mother’s home or socialize with other children in his neighborhood. additionally, the child testified that his mother required him to ride in the back seat of the car, would refuse to drop the child off at the movie theater to see movies with friends, that the child had never had friends sleep overnight at the mother’s house and that he had never spent the night away from home at a friend’s house. The mother also refused to allow the child to pursue his interest in playing football.

The father, on the other hand, had arranged for the child to play football at a local school during summer vacation spent with the father. The father also arrange for the child to have a cell phone and to have friends over to socialize. The court noted that the father had fostered 15-year-old child’s independence and was actively seeking to make the child’s self-reliant. Conversely, the child’s mother had unreasonably restricted the child to such a degree that it negatively impacted the welfare of a child.

In this case it’s interesting to note that one of the major factors revolved around the age of the child in the age appropriate behaviors that one would normally attribute to a 15-year-old. A reading of the case seems to indicate that either parent was financially able to take care of the child. The father was a retired Army general and the mother was a stay-at-home wife married to a physician.

The most important aspect to understand about the case, and about child custody changes in general, is that they are very fact specific to each individual case. An attorney representing someone in a child custody matter must take particular pains to understand all of the facts involved in the particular needs, characteristics, and behaviors of the parties involved as well as the child. Child custody case is a very labor intensive case and is a very demanding process.

Because of these factors, experience with child custody matters allows an Alabama divorce attorney to better represent the client facing a custody battle.

The attorneys at Bradford Ladner LLP are experienced Alabama divorce attorneys who have helped numerous clients with all manner of custody matters.  IF you need assistance in a custody matter, please contact us

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