Alabama’s Two Standards Used to Modify Child Custody

In Whitehead v. Whitehead, decided by the Alabama Court of Civil Appeals on February 12, 2016, the Court does a really good job of explaining the two standards for custody modification. Alabama applies either the McLendon standard or the Couch standard when deciding custody modification.

Two Parents Fighting Over Child In Divorce

Two Parents Fighting Over Child In Divorce

The Standards

The McLendon standard “provides that the parent seeking to modify a previous custody award must demonstrate that a material change in circumstances has occurred such that a change of custody would materially promote the child’s best interests and that the benefits of the change would offset the disruptive effect of the change in custody.”

The Couch standard, otherwise referred to as the “best interests of the child” looks to what is in the child’s best interest.

How to Decide Which Standard Applies

If this is the initial custody determination, or someone with joint physical custody is seeking to modify child custody, then the Couch standard applies.

If the divorce order gives either parent primary physical custody, then the McLendon standard would apply and the party seeking modification would have to prove that:

  1. A material change in circumstance has occurred
  2. Change of custody would so benefit the child that the disruption of custody is outweighed by the benefit the child would receive by the change in custody.

This publication is meant for informational purposes only and is not intended to be legal advice. You should consult an attorney for information of how this applies to your particular situation.

GRANDPARENT VISITATION ACT “FACIALLY UNCONSTITUTIONAL”

In a recent Alabama Court of Civil Appeals opinion, Weldon v. Ballow, on October 30, 2015, the Alabama Court of Civil Appeals was faced with a challenge that the Grandparent Visitation Act was “unconstitutional on its face – that is it always operated unconstitutionally.”

When a challenge comes to the Alabama Court of Civil Appeals as a Constitutional challenge, the Court views it without regard to the lower Circuit Court’s Decision.  However, the Alabama Court of Civil Appeals presumes that Acts of the Alabama Legislature are constitutional and the court must find that a fundamental right has been violated beyond a reasonable doubt to declare it unconstitutional.

The right for a parent to parent a child is a fundamental right. In 2011, the Alabama Court of Civil Appeals struck down Ala. Code 1975, § 30-3-4.1 (Grandparent Visitation) as unconstitutional. The Alabama State Legislature attempted to cure due process issues with amendments, of which Weldon v. Ballow, challenges their Constitutionality.

In Alabama, the law requires that clear and convincing evidence be required to declare a parent unfit. The opinion of the Court of Civil Appeals spent a decent amount of time stating that for a third-party to intervene in a parent’s right to parent a child, a court cannot grant custody to a grandparent (or other third-party) without first declaring the parent unfit. In other words, they cannot look at the best interests of the child without first declaring the parent unfit.

The case law of Troxel led us to apply a standard that a fit parent operates in the best interests of their children. Additionally, the best interest of the child standard only applies when evaluating the best interests of the child as it relates to their two fit parents, not a third party such as a grandparent.

The Alabama Court of Civil Appeals held that the Grandparent Visitation Act, as written, allows a trial Court judge to supersede a parent’s fundamental right to parent their child based on the trial Court’s opinion that it was in the best interest of the child without showing the parent unfit. Therefore, the Alabama Court of Civil Appeals held that the Grandparent Visitation Act is unconstitutional.

Alabama Supreme Court Will Not Hear Appeal on Grandparent Visitation 

ALABAMA COURT OF CIVIL APPEALS STRIKES DOWN GRANDPARENT VISITATION ACT AS “FACIALLY UNCONSTITUTIONAL”

In a recent Alabama Court of Civil Appeals opinion, Weldon v. Ballow, on October 30, 2015, the Alabama Court of Civil Appeals was faced with a challenge that the Grandparent Visitation Act was “unconstitutional on its face – that is it always operated unconstitutionally.”

When a challenge comes to the Alabama Court of Civil Appeals as a Constitutional challenge, the Court views it without regard to the lower Circuit Court’s Decision.  However, the Alabama Court of Civil Appeals presumes that Acts of the Alabama Legislature are constitutional and the court must find that a fundamental right has been violated beyond a reasonable doubt to declare it unconstitutional.

The right for a parent to parent a child is a fundamental right. In 2011, the Alabama Court of Civil Appeals struck down Ala. Code 1975, § 30-3-4.1 (Grandparent Visitation) as unconstitutional. The Alabama State Legislature attempted to cure due process issues with amendments, of which Weldon v. Ballow, challenges their Constitutionality.

In Alabama, the law requires that clear and convincing evidence be required to declare a parent unfit. The opinion of the Court of Civil Appeals spent a decent amount of time stating that for a third-party to intervene in a parent’s right to parent a child, a court cannot grant custody to a grandparent (or other third-party) without first declaring the parent unfit. In other words, they cannot look at the best interests of the child without first declaring the parent unfit.

The case law of Troxel led us to apply a standard that a fit parent operates in the best interests of their children. Additionally, the best interest of the child standard only applies when evaluating the best interests of the child as it relates to their two fit parents, not a third party such as a grandparent.

The Alabama Court of Civil Appeals held that the Grandparent Visitation Act, as written, allows a trial Court judge to supersede a parent’s fundamental right to parent their child based on the trial Court’s opinion that it was in the best interest of the child without showing the parent unfit. Therefore, the Alabama Court of Civil Appeals held that the Grandparent Visitation Act is unconstitutional.

Family Law

Family Law & Divorce Attorney in Guntersville, AL

DIVORCE | CHILD SUPPORT | CHILD CUSTODY | VISITATION | & MORE

Children Caught in the Middle of a Divorce as Pawns

Children Caught in the Middle of a Divorce as Pawns

Divorce in Alabama is usually handled through the Circuit Court of the County in which the couple resides. It is usually a very emotional time, especially if there are children involved. I would love to help you navigate the legal system through this time as quickly as possible so you can get this chapter of your life behind you and start fresh.

Child Custody cases are, in my opinion, the most important cases a judge sees. I believe this to be the case because the outcome of the case determines the quality of life the children involved in the case will have throughout their childhood.

Many Times in Alabama One Parent Can Be Alienated in a Divorce

Many Times in Alabama One Parent Can Be Alienated in a Divorce

If you are curious as to the child support guidelines schedule, here is a link to the Administrative Office of the Courts Guideline Schedule. Additionally, you can click HERE to see an example of child support configuration and general divorce procedures.
I would love to meet with you for a free consultation regarding your divorce or child custody issues. Please call me, Paul Seckel, at 256-571-1529 to schedule a free consultation.

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