78 So. 3d 979
Ala. Civ. App.2011Background
- On December 17, 2009, L.S. petitioned in juvenile court to modify custody of A.P. and K.P.
- The prior orders awarded custody to paternal grandparents P.A. and M.A. and were contested by the mother.
- On December 8, 2010, the juvenile court found each child no longer dependent and awarded custody to the mother.
- The paternal grandparents appealed, contending the court failed to apply Ex parte McLendon standards in modification.
- The juvenile court had previously issued "temporary" custody orders in 2007 and 2009 for the same children to the paternal grandparents.
- This Court held that temporary custodial orders are not pendente lite and that McLendon standards apply to modifications of such custody orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McLendon standard applies to modification of custody awarded to relatives | Grandparents argue McLendon applies. | Mother contends McLendon not required due to temporary orders. | McLendon standard applies; error in failing to apply it. |
| Whether temporary custody orders were pendente lite or final dispositional judgments | Orders were temporary and subject to modification. | Orders were final or effectively final. | Orders are final dispositional judgments; McLendon standards required for modification. |
Key Cases Cited
- Ex parte McLendon, 455 So.2d 863 (Ala. 1984) (standard for post-judgment custody modification)
- Barber v. Moore, 897 So.2d 1150 (Ala.Civ.App.2004) (McLendon considerations reiterated)
- J.W. v. C.B., 56 So.3d 693 (Ala.Civ.App.2010) (McLendon applies to relative custody orders)
- M.B. v. S.B., 12 So.3d 1217 (Ala.Civ.App.2009) (temporary custody may be labeled temporary but still subject to McLendon)
- In re F.W., 681 So.2d 208 (Ala.Civ.App.1996) (McLendon framework in related custody contexts)
- T.J.H. v. S.N.F., 960 So.2d 669 (Ala.Civ.App.2006) (distinguishing pendente lite vs temporary custody)
- Ex parte J.P., 641 So.2d 276 (Ala.1994) (temporary custody generally subject to modification when warranted)
- Rich v. Rich, 887 So.2d 289 (Ala.Civ.App.2004) (difference between pendente lite and temporary custody)