Overruling the overwhelming-necessity standard for modifications of child custody in Alabama: Ex parte Cleghorn.

AuthorEubank, Laura T.
  1. INTRODUCTION

    In Alabama, a party seeking modification of a child custody arrangement must meet the McLendon standard, which requires the party seeking modification to demonstrate that a change in custody would so materially promote the welfare of the children as to outweigh the "inherently disruptive effect caused by uprooting the child." (1) Subsequent cases interpreted the McLendon standard as requiring the party seeking child custody modification to also demonstrate that "an overwhelming necessity for change" in child custody existed. (2) However, in Ex parte Cleghorn, the Alabama Supreme Court held that the McLendon standard did not require a showing of overwhelming necessity, overruling previous decisions in Ex parte Martin and Ex parte Peppers. (3) In Cleghorn, the Alabama Supreme Court reasoned that an overwhelming-necessity standard produced an impossible burden on a party seeking modification of a custody order and promoted "stability above the best interest of the child." (4)

    The first section of this note states the facts, procedural posture and the Court's holding and reasoning in Ex parte Cleghorn. The second section presents a legal background of the Alabama law for child custody modification. The third section presents a case analysis that includes: (1) a discussion of whether the overwhelming-necessity standard was misinterpreted as a substantive standard; (2) an examination of whether the overwhelming-necessity standard creates an impossible burden on the party seeking to modify a custody order; and (3) a proposition to promote consistency of factors to be considered for modification of child custody orders. The final section of this note is the conclusion.

  2. STATEMENT OF THE CASE

    1. Recitation of Undisputed Facts

      Tina Bledsoe and Earl Cleghorn were divorced on October 11, 2001. (5) Custody of the parties' adopted daughter was awarded to Bledsoe with scheduled visitation awarded to Cleghorn. (6) Both parties remarried. (7) Problems began when Bledsoe and her new husband insisted that Cleghorn, a paraplegic, exit his vehicle and go to Bledsoe's vehicle to pick up the child. (8) On January 27, 2004, Cleghorn filed a petition for contempt and modification of the custody agreement. (9) This led to a court order requiring visitation exchanges to occur in the Evergreen Police Department parking lot and directing Bledsoe to transport the child to and from Cleghorn's vehicle. (10) The Court also ordered the parties not to harass each other. (11)

      Despite the court order, problems continued and resulted in the parties' return to court for another petition to modify the custody arrangement. (12) Among the many claims made against Bledsoe and her husband, Cleghorn alleged that: (1) Bledsoe and the stepfather were trying to cut him off from his child; (13) (2) the stepfather intimidated Cleghorn and threatened him; (14) (3) the stepfather would punish the child for speaking to Cleghorn on the telephone; (15) (4) the stepfather hit him during a visitation exchange; (16) (5) Bledsoe did not keep the child clean; (17) (6) Bledsoe denied him information regarding the child's grades and activities; (18) and (7) Bledsoe and her husband told the child to call the stepfather "Daddy" and Cleghorn by his first name. (19)

      Cleghorn presented further evidence that his schedule was better suited for taking care of the child because he could take the child to school closer to the time school started, and he could pick the child up on time at the end of the school day. (20) He argued that Bledsoe's schedule required her to take the child to school forty-five minutes before school started and then to take her to the stepfather's restaurant for a few hours after school. (21) Cleghorn contended that he taught the child to respect Bledsoe and her new husband, but that they tried to harm Cleghorn's relationship with the child. (22) Overall, he argued that their actions subjected the child to emotional abuse and were "dangerous and harmful to the child's well-being." (23)

      The mother disputed most of Cleghorn's accusations. (24) Bledsoe, however, admitted to telling the child that she had been adopted, at a time when Cleghorn was not present, in violation of the court's order. (25) At the child's kindergarten graduation, the child had a poem and a rose to give each of her parents. (26) Bledsoe confessed that she would not allow her daughter to give her father the poem and the rose until after the graduation when he had already returned to his truck. (27) Bledsoe admitted that she would not allow Cleghorn to kiss his little girl on the mouth; however, she claimed she would not allow anyone to kiss the child on the mouth for health reasons. (28)

    2. Procedural Posture

      The trial court awarded custody to Cleghorn. (29) The Alabama Court of Civil Appeals reversed the trial court and held that the evidence before the trial court did not indicate either a material change affecting the welfare of the child or an overwhelming and obvious need for change in custody. (30) Cleghorn petitioned the Alabama Supreme Court for certiorari review, which was granted. (31) The Court granted review to determine whether it should overrule parts of its decisions in Ex parte Martin and Ex parte Peppers. (32) The Court's decisions in these two prior cases added an element to the standard established in Ex parte McLendon. (33) The decisions implied that a party seeking a custody modification must prove not only that a change in custody would so materially promote the welfare of the child as to outweigh the "inherently disruptive effect" of a change, (34) but also that there existed an "obvious and overwhelming necessity for the change." (35)

    3. Holding and Reasoning

      The Alabama Supreme Court reversed the Court of Civil Appeals and held that the court improperly applied the overwhelming-necessity standard in addition to the McLendon standard. (36) In so holding, the court overruled portions of both Ex parte Martin and Ex parte Peppers. (37) Both of these cases could be read to require a party to meet not only the McLendon standard, but also the overwhelming-necessity standard in order to prevail in a custody

      modification hearing. (38) The court reasoned that applying the overwhelming-necessity standard created a nearly impossible burden for the party seeking modification of a custody order when the court should be considering the best interests of the child. (39) The court stated that when it "reviews a trial court's child-custody determination that was based upon evidence presented ore tenus, [it] presume[s] that the trial court's decision is correct." (40) The court offered greater insight into the importance of ore tenus review when it explained that "a custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong." (41) The ore tenus rule is applied because "[t]he trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody." (42)

      The overwhelming-necessity standard was actually supposed to be used by the Court of Civil Appeals "merely as the appellate-review standard that must be met to overcome the 'ore tenus presumption' in favor of a trial court's judgment where the evidence is presented orally." (43) The Court further noted that the Court of Civil Appeals first incorrectly applied the overwhelming-necessity standard in Braswell v. Braswell as a substantive legal standard, which later led to its misuse as an additional requirement to the McLendon standard for parties petitioning for custody modifications at the trial court level. (44)

  3. LEGAL BACKGROUND

    The Alabama Supreme Court created the rules for modification of a custody order in Ex parte McLendon. (45) There the trial court modified a child custody order to award custody to the mother of a child. (46) Custody was originally given to the paternal grandparents in a divorce decree. (47) The grandparents had custody of the child for almost five years, and during that time the mother visited infrequently. (48) Evidence showed that the mother had remarried and was able to provide a stable environment for the child. (49) The mother's new husband stated that he would assist in caring for and supporting the child. (50) The Court of Civil Appeals affirmed the decision of the trial court awarding custody to the mother. (51) On appeal, however, the Alabama Supreme Court reversed and remanded. (52)

    The facts of the case revealed that both the grandparents and the mother were equally able to take care of the child. (53) The court reversed because the Court of Civil Appeals misconstrued the holding in Ex parte Berryhill when making its decision. In Berryhill, the Alabama Supreme Court said that a natural parent had a superior custody right in a contest between a natural parent and a non-parent. (54) The Berryhill rule does not apply, however, when there is a prior custody decree removing a child from the custody of a natural parent. (55) The court stated that the mother failed to prove that a change of custody "materially promoted the welfare and best interest of the child." (56) The court explained that the child's welfare was paramount and further stated that:

    [t]he party seeking modification [is required] to prove to the court's satisfaction that material changes affecting the child's welfare since the most recent decree demonstrate that custody should be disturbed to promote the child's best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned. (57) The decision in McLendon created a new standard for child custody modification and rejected the previous standard...

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