Jones v. McCoy, 150 So. 3d 1074

Background

Mother was awarded physical custody in a 1997 Texas divorce decree; parents retained joint legal custody; father ordered to pay support. Father later moved to Florida.
Father filed to modify custody in July 2011; guardian ad litem (GAL) was appointed and recommended pendente lite custody to father (trial court denied that request).
GAL arranged two meetings between the child and Dr. Bridgett Smith (a psychologist) during the father’s custodial time; mother objected that she had not consented to or been notified of the evaluation.
Trial (ore tenus) occurred; GAL testified and Dr. Smith testified at limited scope; trial court found the father met the Ex parte McLendon standard, awarded custody to the father, set a visitation and child-support scheme, and allocated GAL fees.
Mother moved postjudgment under Rules 59 and 60; trial amended a clerical child-support date and denied relief; mother appealed.

Issues

Issue	Jones’s Argument	McCoy’s Argument	Held
Whether GAL’s arranging a psychological evaluation without mother’s consent violated mother’s parental rights	As physical custodian, Jones argues she had exclusive right to authorize care and should have been consulted before Dr. Smith evaluated the child	Father/GAL contend father, as joint legal custodian, authorized the evaluation while child was in his care	Court: No violation — joint legal custody allows either parent to authorize such evaluations; Dr. Smith was authorized by father (Morgan cited).
Whether mother was denied due process by being required to present witnesses before father rested	Jones claims trial sequencing forced unfair procedure and violated due process	McCoy/GAL point to trial management discretion; mother failed to cite relevant civil authority	Court: Argument waived for lack of authority; no relief.
Whether GAL should have been recused for advocating child’s preference rather than best interests	Jones says GAL acted as child’s attorney, pre-judged issues, and prejudiced her	GAL asserts he advocated for the child’s best interest and participated fully in process; mother had opportunity to contest	Court: GAL may have misunderstood role but mother was not denied fair opportunity to contest; no recusal.
Whether trial court abused discretion in modifying custody under Ex parte McLendon standard	Jones argues father failed to show material change and that change would materially promote child’s welfare; child’s preference alone is insufficient	McCoy relied on material change evidence: child’s restricted social life, lack of football program, father’s provision of social/independence opportunities, and child’s expressed desire to live with father	Court: Affirmed — sufficient evidence of material change and that benefits of change outweighed disruption; custody awarded to father.

Key Cases Cited

Ex parte McLendon, 455 So.2d 863 (Ala. 1984) (standard for modifying custody when prior primary physical custody awarded)
Ex parte Cleghom, 993 So.2d 462 (Ala. 2008) (McLendon standard as a rule of repose favoring stability)
Ex parte Patronas, 693 So.2d 473 (Ala. 1997) (deference to trial court’s custody determinations when evidence presented ore tenus)
Cheek v. Dyess, 1 So.3d 1025 (Ala. Civ. App. 2007) (appellate standard reviewing ore tenus custody evidence)
Morgan v. Morgan, 964 So.2d 24 (Ala. Civ. App. 2007) (when parents share legal custody, one parent’s decision adopted by court does not violate other parent’s rights)
M.B. v. R.P., 3 So.3d 237 (Ala. Civ. App. 2008) (prejudice where GAL recommendation considered without attending trial)
Ex parte R.D.N., 918 So.2d 100 (Ala. 2005) (due-process violation when court considers ex parte GAL recommendation)
Cochran v. Cochran, 269 So.2d 884 (Ala. Civ. App. 1970) (children are not parties to divorce/custody actions)