Custody battles place courts in the unique position of determining which parent is more “fit” to take care of the children. A parent with legal custody can make decisions on behalf of the child (such as schooling, medical care, etc.)
A parent with physical custody has the child live with him or her. Courts may either choose to let parents share these duties or elect one parent as the primary custodian. If parents want to modify the arrangement years later, there is a very high burden to establish that circumstances have so changed.
Recently in Baldwin County, in Johnson v. Johnson, the court addressed the standard for changing sole physical custody from the sole custodial parent to the non-custodial parent. Here, the mother and father had two children. They divorced in 2015, whereby the father was awarded sole physical custody. In November 2016, the mother filed a petition to modify custody. The trial court granted this petition, awarding sole physical custody of the children to the mother. The father appealed.
The mother submitted evidence regarding her recent sobriety and new employment working as an attorney. The mother’s reason for petitioning for custody was that the father did not include her in decisions and that she had concerns regarding the father’s fiancée’s relationship with the children. The father testified that he cooks breakfast every morning, either he or the nanny takes the children to school, and that he spends evenings with the children. The father testified that these circumstances would not change after his remarriage.
The Court maintained that the mother’s efforts to rehabilitate herself were not enough to change custody from the father to the mother. The mother did not raise any concerns about the father’s parenting significant enough for the Court to find it appropriate to strip him of custody.
The Court finally noted that the mother was required to show that the positive changes in her situation outweighed the disruptive effect that uprooting the children from their current living arrangement would have; she did not do this. The Court of Civil Appeals reversed the trial court’s decision and returned sole physical custody to the father.
The main takeaway here is that the standard for modifying custody is very high. The standard, referred to as the McLendon standard requires a change in circumstances to change custody. However, that change in circumstances on the side of the party requesting the change must outweigh the negative effects of taking children out of their stable living arrangements.
It is important to seek an experienced child custody attorney who understands the realities of Alabama custody law. If you need a child custody lawyer, contact INGRAM LAW LLC at (205) 335-2640 for help with your case.