Does your spouse, significant other or your child's other parent currently have primary custody? Are you concerned about the welfare of your child or has the situation changed. In Alabama, as well as most other states, you have the ability to modify custody under certain circumstances. There may be concerns of child abuse in the other parent's home, or the ability of the other parent to properly raise the child, and the situation has taken a turn for the worst. If so, call Birmingham family law attorney Sam Dixon today for a free consultation! Below, Dixon Law addresses the process and some commonly asked questions to keep you better informed.
The McLendon Standard:
When a non-custodial parent is seeking a modification of a previous custody arrangement, Alabama law follows a pivotal case often called the McLendon standard. A petition to modify custody imposes a more stringent standard than the typical “best interest of the child” standard that is used in an initial custody determination. The 1984 case of Ex Parte McLendon set the standard in Alabama for modification of child custody. The standard requires that the parent who is seeking a modification or change in custody must show proof of the following:
- That a material change in circumstances has occurred since the initial or previous judgment regarding custody in the case;
- That the child's best interest will be promoted materially by a change in custody; and
- That the benefits of the custody change will more than balance the intrinsic disruptive effects which may result from a change in custody.
Courts in Alabama are often reluctant to change or modify custody for fear of the inherent disruptive effects on the child and/or children. However, Dixon Law has been successful on many of these types of cases by demonstrating the prongs listed above. Although modifying custody increases the burden of proof, this should not deter an individual from modifying custody if he or she has concerns for the upbringing and well-being of the minor child.
For example, the primary custodial parent might have issues of drug abuse or have been charged/convicted of a crime. Maybe the custodial parent has serious issues with mental health or cohabitation with an individual that poses substantial risks to the minor child. Did the other parent lose their job or has displayed disturbing behavior? Is the child doing poorly in school or is the other parent trying to relocate the child. All of the above-mentioned reasons, and many more, may be grounds to modify custody in your favor!
If an initial custody determination occurred through divorce proceedings, typically a modification for custody will be filed in the domestic relations court of original jurisdiction. So, if you were divorced in Jefferson County, then the appropriate jurisdiction would be the domestic relations division of Jefferson County. If a child was born out of wedlock, typically the appropriate jurisdiction would be the family court in which the child has lived for at least six (6) months prior to the filing of the complaint. Regardless of whether the case is filed in family court or the domestic relations court, the next steps are almost the same.
Filing the complaint:
To begin the process, the individual seeking to modify custody needs to file a complaint seeking the modification in the appropriate jurisdiction. The complaint should set out the allegations and/or reasons custody should be modified to put the other party on notice. It is not necessary to list every single reason why custody should be modified, just a short plain statement for relief will do under Rule 8 of the pleading standards dictated in the Alabama Rules of Civil Procedure.
Serving the complaint:
The next step in this process is to serve the complaint on the other party. Dixon Law has several process servers that will ensure this step takes place. The process server will generally show up at the home or, if the other party is ducking service, will even show up and serve the other party at their place of business. The process server will then provide documentation that the other party has been served and Dixon Law will file that notice of service with the court. After the other party has been served, they will typically have thirty (30) days to respond to that complaint (unless discovery has also been filed with the complaint, then they will generally have forty-five (45) days to respond).
Once pleadings have been filed, the next steps are to initiate discovery. There are many avenues of the discovery process, but typically this will include: request for admissions, interrogatories, requests for production of documents and, on many occasions, depositions. Request for admissions are questions in which the appropriate party request the other to “admit or deny” certain questions asked. For example, “admit or deny that you have used illegal substances in front of the minor child.” The answering party will then have no choice but to either admit or deny the question. If the responding party fails to answer the questions within the allotted period of time, the questions will be deemed “admitted” under Alabama Law.
Interrogatories, usually limited to forty (40) questions in Alabama (one can ask for leave of court to ask more than forty (40) if necessary) are used to inquire about pivotal information that can be used to build your case! Typically these questions can range from income, environment, parenting tactics, criminal history, substance abuse and much more.
Request for production of documents is also a useful tool in the discovery process. This is where parties ask for documents such as W2's or other income information, emails, school information, witness list and basically any other documents that could be relevant and useful in a trial situation.
Lastly, depositions are also a useful tool. This is when the attorneys schedule a time to depose an individual pertinent to the case, usually in the office of one of the attorneys. In Alabama, the time limit to depose an individual is usually capped at seven (7) hours. What happens here is that the individual being deposed swears, under oath, that he or she will truthfully answer all questions to the best of his or her ability; this is done in the presence of a court reporter whose job is to document and record all the questions and answers. The court reporter will then provide the transcripts to both attorneys for trial. This can be important because, if the party that was deposed answers a question in trial that was inconsistent with the answer in a deposition, this can be offered to show that person lacks credibility. Usually, no matter the question, the party being deposed must answer and then the judge will determine the admissibility of those answers. If the question could further lead to relevant discovery, those questions are permissible. Depositions are a good way to discover a vast amount of information in a short period of time. Depositions are also a great way to put the other party in the proverbial “hot seat.”
Mediation and Trial:
After discovery is completed from both sides, some judges in Alabama require or suggest mediation. Mediation is where all parties, and their lawyers, sit down to attempt to resolve the case. However, usually custody battles can get quite ugly and rarely does the non-modifying party want to agree to modify custody. Therefore, many custody modification cases end up going to trial.
The final step of the process is finally here. This is where arguments, testimony from witnesses and vigorous cross-examination are necessary to achieve favorable results. Dixon Law uses proven cross-examination tactics, experts, private investigators and much more to strive for the best results possible. The judge will then determine whether the McLendon standard has been met. If so, get your child's room ready, because they're coming home with you! Dixon Law has handled hundreds of custody cases and will fight tooth and nail for you! Call an experienced family law attorney today at 205-616-8896.