Written by attorney Jacquelyn Diane Tomlinson

What Standard is Uto Determine a Child Custody Situation?

Under the laws of Alabama, there are two very different standards for reviewing a joint custody situation. Where the parties are to share joint legal custody and physical custody, the standard applied is "the best interest of the child" standard found in Ex Part Couch. The McLendon rule, which requires a material change in circumstances, is inapplicable under such conditions and the appropriate burden of proof is where a change would promote the best interest of the child involved. The court will look to see whether a change in circumstances has occurred that is in the child's best interest to warrant the decree by modified by the court to establish or transfer primary physical custody and whether the party seeking a modification had alleged and proved changed circumstances sufficient to warrant a change (Means v. Means, 512 So.2d 1386 (Ala. Civ. App. 1987)). The best interest of the child standard will be used since the former order of the court leaves the parents with equal custody.

If however, there has been a previous determination by the court placing primary physical custody with one parent over the other, the party who chooses to move the court for a modification must meet the McLendon test (Taylor v. Taylor, 563 So.2d 1049 (Ala. Civ. App. 1990). The McLendon rule will be triggered when a custodial parent seeks to regain custody that was previous lost under a temporary order by the court (Sims v. Sims, 515 So. 2d 1 (Ala. Civ. App. (1987). This is correct since such a temporary order is generally intended to only last until one of the parties, usually a parent, petitions the court with jurisdiction to modify the original order. This being said, the McLendon test will not apply to a pendent lite order; these orders are generally entered during the pendency of litigation and are therefore replaced by a final order or decree by the judge at the end of litigation (Id.)

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