All too common are the horror stories surrounding child custody battles. The legal process can be long and arduous and as a result, can be very intimidating for parents seeking to protect and care for their children. A case recently filed in the Alabama Court of Civil Appeals demonstrates the rule for establishing custody rights: the McLendon Standard. This case brief will cover the case J.H. v. N.H., No. 2180464, 2020 WL 597204 (Ala. Civ. App. Feb. 7, 2020) to give a real-world example of the McLendon Standard in practice.
What is the McLendon Standard?
Before going into the facts of the case, we need to understand what the McLendon Standard is and how it works. The McLendon Standard established the custody-modification standard in the state of Alabama as laid out in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), and clarified in Kunkel v. Kunkel, 547 So. 2d 555, 560 (Ala. Civ. App. 1989):
“the noncustodial parent seeking a change of custody must demonstrate (1) “that he or she is a fit custodian”; (2) “that material changes which affect the child’s welfare have occurred”; and (3) “that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child.”
So why does this standard matter? The process of moving custody of a child from one parent to another can be difficult and the criteria for the validity of transfer can often be unclear. What McLendon does is give a litmus test to establish the basis for a modification of custody. It is designed to make sure that a change in custody is justified under the law with clear evidence for the custodian.
Now that we understand what McLendon is, let’s look at the facts of the case where McLendon was used.
The Facts of the case
The case involves a dispute between J.H. (Mother) and N.H. (Father) who entered into an agreement on August 19, 2004, concerning the custody of their child M.K., granting the mother physical custody, and visitation rights to the father. The father was also required to make child support payments with both parties revisiting the amount every two years. In 2017, a complex legal battle over the child’s custody began.
A neighbor testified to the court that he had come to know the child well. The child confided to the neighbor and his wife that she had become sexually active and that the mother had beaten her with a belt. The mother admitted to spanking the child to the point of leaving marks, as well as “popping” the child for “back-talking.” The mother claimed to not have physically harmed the child since she was 13. The child also testified to both the backhanded hit and that at 13 the mother had beaten her, leaving bruises on her back and legs.
The child testified to being sexually active at 15 years old with several people. She informed the father of her sexual activity and he became concerned. He attempted to discuss with the mother his disfavor with the child dating and being sexually intimate with an 18-year-old boy. As indicated by the child, the mother encouraged the relationship despite the father’s warnings. The mother became less strict to try and incentivize the child against wanting to live with the father. The child wanted to change her bad behaviors and clear her reputation about her sexual activity.
The child explained that, while in her mother’s custody, she attended a school with students who were involved with drug abuse, or whose parents were involved with drug abuse. As the child desired not to be involved with drug use, she had little to no friends at this school. The child stated her desire to attend cosmetology school, explaining that there were no trade schools offering training in that trade near her mother’s home. The child believed that there would be more opportunities living with her father, and she would be kept busy and out of trouble in his home.
The child also testified that she desired to live with her father because the mother would commonly take her to a church called “The Ramp.” The father expressed his concern over the child attending the nondenominational church because of the “cult-like” atmosphere. The mother disputed this by stating the child had shown interest in attending the church. The child said in response that the “crazy stuff” she saw at these conferences made her uncomfortable.
The mother acknowledged the issues with the child’s school along with the dangers of her being sexually active at 15 and her support of the child’s sexual activity. She claimed that the child mainly wanted to live with her father because her friends lived closer to him.
The child stated that the mother tried to get her to take pictures of the father drunk and passed out, but explained that she was unable because the father never drank around her. The child stated that the mother is a good mother, but she said the mother gets mad and gives irrational punishments without listening to the child. The father became concerned about the child’s mental well-being due to the mother manipulating her. The father testified that the child had often come to his house from the mother’s home with bruises and burns. The father claimed that the mother had been difficult to deal with in reference to the child since she was 10 years old, stating that the mother was “irrational and unreasonable and her decision-making skills… are so extreme.”
With all the facts laid out, what was the court’s holding?
The Court’s Holding
Relating to the McLendon Standard, the Court of Civil Appeals held that sufficient evidence supported modifying child custody such that father would be awarded sole physical custody of child, who was 16 years old at time of trial; but
Going through each of the criteria of the McLendon Standard, we can see how the court resolved the question as to whether custody should be transferred to the father.
First, the court analyzed whether the father was a fit custodian of the child. The father was very responsible with the child. He did not drink in front of her, did not encourage her sexual relationships, and was concerned with the effect of the cult-like environment of The Ramp. The father was shown to be the better custodian.
Second, the court considered if giving the father custody would provide material changes that would have a positive effect on the child’s welfare. The mother was physically abusive of the child and encouraged sexual activity as a minor and forced the child to attend a church that made her uncomfortable. Under the mother’s custody, the child attended a school with a negative environment that encouraged negative behavior. The father was safe and responsible with the child, as seen above, and living with the father the child would be in a schooling environment that encourages more positive behavior and would be able to pursue her desired career more easily.
Lastly, the court assessed whether the positive good brought about by the change in custody offset the disruptive effect of uprooting the child. The child lived with an abusive mother, attended a bad school with a drug problem, and was encouraged to pursue unhealthy sexual relationships. Moving in with the father, the child would go to a much better school, with a loving and understanding father who would parent her responsibly. The court concluded that the positive good would offset the negative effect of uprooting her.
For those who fear to go to court over matters of custody, cases like this can be encouraging. When the standards for change of custody are clear, parents seeking to provide their child with a safe home can be confident in proving they are a fit custodian.
Brennan DePace was born and raised as a pastor’s child and has carried with him the strong Biblical values passed on from his father. DePace is the youngest of five children who received a rigorous and thorough home-schooled education. He is now a Freshman at Auburn University at Montgomery studying History, with the hopes of attending law school and becoming an attorney. DePace serves as Legal Assistant to the Hon. Samuel J. McLure of The Adoption Law Firm.