255 So. 3d 755
Ala.2017Background
- Child born 2007; maternal grandparents obtained custody in Aug. 2010 after mother asked them to take the child and did not appear at the hearing. Child lived with grandparents from age 3 to 9.
- Mother petitioned in Feb. 2016 to modify custody; juvenile court awarded mother custody in June 2016 and ordered a gradual transfer of physical custody.
- Mother presented ore tenus evidence of past mental illness, prior drug abuse, two-year imprisonment, sobriety for six years, current stability, remarriage, and that the child would live with her and the mother’s other children.
- Grandparents presented evidence of long-term, active caregiving: the child calls the stepgrandmother “mom,” grandparents participated extensively in schooling and religious life, and they provided a stable home; stepgrandmother testified she had breast cancer but reported minimal side effects.
- Juvenile court justified modification in part by stating the grandparents’ situation had “diminished” (citing the stepgrandmother’s illness); grandparents moved to vacate and appealed; Court of Civil Appeals affirmed without opinion; Supreme Court granted certiorari.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Grandparents) | Held |
|---|---|---|---|
| Whether mother met Ex parte McLendon standard to modify custody awarded to nonparents | Mother: Her circumstances improved, she is fit, has a strong bond with child from recent visits, child would live with siblings, and grandparents’ situation diminished (stepgrandmother’s illness) | Grandparents: They are stable, loving long-term custodians; mother’s recent four-month increased visitation is insufficient; stepgrandmother’s cancer did not impair caregiving | Held: Reversed — mother did not meet McLendon because evidence was insufficient to show change would materially promote child’s welfare outweighing disruptive effect |
| Whether stepgrandmother’s cancer diagnosis alone justified finding material promotion of child’s welfare | Mother: Illness shows grandparents’ situation diminished such that transfer benefits child | Grandparents: Evidence showed no impairment in care from illness; only hair loss reported; no evidence child affected | Held: Court: Diagnosis alone insufficient; record contained no proof illness affected caregiving |
| Whether living with mother’s other children materially promoted child’s welfare | Mother: Reuniting with siblings benefits child | Grandparents: No evidence child ever lived with those siblings; siblings’ living history does not show prior shared household | Held: Court: No evidence of prior sibling cohabitation or significant benefit; claim unsupported |
| Whether Court of Civil Appeals properly affirmed under ore tenus review | Mother: Ore tenus deference supports trial court credibility determinations | Grandparents: Even with deference, evidence so fails to support change that judgment is plainly and palpably wrong | Held: Court: Although ore tenus deference applies, evidence fails McLendon; Court of Civil Appeals’ affirmance conflicts with Ex parte McLendon — reversed and remanded |
Key Cases Cited
- Ex parte McLendon, 455 So.2d 863 (Ala. 1984) (establishes burden for modifying custody awarded to nonparents: changed circumstances, fitness, and material promotion of child’s welfare that outweighs disruption)
- Wood v. Wood, 333 So.2d 826 (Ala. Civ. App. 1976) (discusses disruptive effect of uprooting child; cited in McLendon)
- Scroggins v. Templeton, 890 So.2d 1017 (Ala. Civ. App. 2003) (modification upheld where custodial parent’s disability materially impaired parenting)
- M.R.J. v. D.R.B., 34 So.3d 1287 (Ala. Civ. App. 2009) (modification upheld where other household stability and available caregiver support favored transfer)
- K.U. v. J.C., 196 So.3d 265 (Ala. Civ. App. 2015) (summarizes McLendon elements and appellate standards; used for ore tenus review discussion)