When you and the opposing party have children together, it is very likely that you will be back in court several times to modify your current custody, visitation, and/or child support order. But when do you know when it is time to modify custody?
In Albama, there are two types of custody: legal custody and physical custody. A parent who has legal custody has the right to make major decisions affecting a child such as health care, education, and religion. Most orders that I see designate that the parents have “joint legal custody” which means that each parent has the equal right to make these major decisions in their child’s life. However, most people are concerned with physical custody or which parent physically has the child and for what length of time. In order to modify physical custody, there has to be an initial material change in circumstances. In essence, this means that something has occurred that would make the current custody arrangement change.
Modifying a Custody Order When One Parent Has Primary Physical Custody
When one parent is designated the primary physical custodial parent, The McLendon standard is applied. Ex parte McLendon holds that in order to modify custody, “[t]he positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. The parent seeking the custody modification must show not only that he or she is fit, but also that the change in custody materially promotes the child’s best interest and welfare.”
In order to modify custody from a designated custodial parent to the non-custodial parent, this very heavy burden must be met. There is no bright line rule as to what will warrant a custody modification under McLendon. However, the court will look at the totality of the circumstances on a case by case basis. In my experience, evidence is your strongest argument.
In order to modify a visitation order in place, the petitioner must merely show the court that the current order in place is unworkable. Maybe you have started a new job that interferes with your weekend visitation or maybe your current visitation order does not address holidays. If this is the case, then a visitation modification may be best for you. Recently, it has been the judicial trend to give more visitation to the non-custodial parent than the average “every-other weekend” model. This, of course, is all dependent on your judge. It is best to hire an attorney that is familiar with your judge and his or her preference in visitation.
Because custody and visitation modification is complex, it is best to seek the advice of an attorney to help you through the process. An experienced family law attorney will help you through the process and will assist in ensuring that you have the best chance at a positive outcome.