157 So. 3d 917
Ala. Civ. App.2014Background
- Parties had a divorce custody judgment later modified (Sept. 2010) to an arrangement the parties treated as joint physical custody, with roughly equal custodial time.
- Mother petitioned in May 2012 to modify custody; trial court (Feb. 28, 2013) awarded mother primary physical custody, finding the modification standard met and later stating the best-interest standard also applied; father appealed.
- After the 2010 modification the relationship between the oldest child (M.B., then a teenager) and the father deteriorated: M.B. engaged in substance use and sexual activity, the father angrily told M.B. he felt like shooting her during a family meeting, and M.B. subsequently moved in with the mother and had little contact with the father.
- The mother presented evidence that the younger children (A.B. and H.B.) sometimes were sad at the father’s home and that scheduling/cooperation had become strained; father disputed serious neglect or material changes for the younger children.
- Trial court modified custody of all three children; on appeal the court affirmed the modification for M.B. but reversed as to A.B. and H.B., remanding for entry of judgment consistent with that ruling.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Applicable modification standard (McLendon vs. best-interest/Couch) | Mother: joint-custody judgment -> best-interests standard applies | Father: modified judgment labeled him primary custodian -> McLendon applies | Best-interests/Couch applies because the 2010 arrangement was joint physical custody despite wording labeling a primary residence |
| Whether a material change supported changing custody of M.B. | Mother: deterioration of parent-child relationship (father’s threats, M.B. moved out) materially affects M.B.’s welfare | Father: no sufficiently material change; trial court erred | Material change found as to M.B.; custody modification affirmed |
| Whether material change supported changing custody of A.B. | Mother: A.B. prefers mother, misses mother, sometimes left alone or sad at father’s home | Father: no evidence of change in work schedule or relationship since 2010; joint custody presumed appropriate | No material change shown for A.B.; modification reversed as to A.B. |
| Whether material change supported changing custody of H.B. | Mother: general claims of decreased cooperation and stability | Father: H.B. adjusted well; no change shown | No material change shown for H.B.; modification reversed as to H.B. |
Key Cases Cited
- Ex parte McLendon, 455 So.2d 863 (Ala. 1984) (modification of sole-custody award requires showing material change and that benefit outweighs disruption)
- Ex parte Couch, 521 So.2d 987 (Ala. 1988) (joint-physical-custody modifications governed by best-interests standard)
- New v. McCullar, 955 So.2d 431 (Ala. Civ. App. 2006) (a judgment labeled to favor one parent can nonetheless be a joint-physical-custody arrangement for modification purposes)
- Ex parte Blackstock, 47 So.3d 801 (Ala. 2009) (reiterating best-interests standard for modifying prior joint-physical-custody awards)
- Pullum v. Webb, 669 So.2d 925 (Ala. Civ. App. 1995) (erosion of parent-child relationship can constitute a material change under certain circumstances)
- Cochran v. Cochran, 5 So.3d 1220 (Ala. 2008) (lack of cooperation alone generally insufficient to justify custody modification)