A material change in circumstances, a parent's move, a remarriage, a shift in the child's needs, or a change in either parent's ability to care for the child, can justify a custody modification. But which standard the court applies to your case depends on the current custody arrangement, and Alabama recognizes two very different standards.
Standard 1 — When one parent has primary physical custody: the McLendon standard. If one parent currently has primary physical custody and the other parent wants to take primary custody, the petitioning parent must meet the higher standard set by the Alabama Supreme Court in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984).
The petitioner must show: 1. A material change in circumstances since the last custody order, and
2. The proposed change will materially promote the child's best interests, and
3. The benefit of the change outweighs the inherent disruption of removing the child from the existing custodial home. The third prong is what makes McLendon a deliberately high bar. Alabama courts will not uproot a child from a settled custodial home unless the petitioning parent can show that the gain to the child from the move clearly exceeds the cost. This is the standard you are facing if you currently have visitation only and want to take primary custody.
Standard 2 — When parents share joint physical custody: the Couch standard.
If the parents currently share joint physical custody, meaning the child genuinely spends substantial time in both homes, not a sole-custody arrangement labeled "joint," a different and meaningfully easier standard applies. Under Ex parte Couch, 521 So. 2d 987 (Ala. 1988), the petitioning parent must show:
1. A material change in circumstances since the last custody order, and
2. The proposed modification is in the best interests of the child. That is the entire test. There is no third prong requiring you to prove the benefit outweighs the disruption. Because joint physical custody already contemplates the child moving between two homes, the Alabama Supreme Court in Couch concluded that the McLendon "benefit-outweighs-disruption" rationale does not fit. The result: when you currently share joint custody, asking the court to adjust that arrangement is procedurally lighter than asking the court to take primary custody from the other parent under McLendon.
Why the difference matters for your case. Whether you are facing McLendon or Couch changes everything, the evidence you need, the witnesses you call, and even whether the case is realistically worth bringing. A case that would lose under McLendon may well succeed under Couch on the same facts.
The first thing we do at your consultation is figure out which standard applies and build the strategy from there. (Modifications of visitation alone without seeking to change physical custody are governed by the simpler "best interests of the child" standard and are not subject to either McLendon or Couch's heightened material-change requirement in the same way.)
What else can be modified. Child Support. Income changes, a new child in either household, shifts in healthcare or daycare costs, or substantial changes to either parent's earning ability can all trigger a child-support recalculation. Alabama uses an Income Shares model, and child support is calculated based on both parents' gross income, custody arrangement, and certain enumerated expenses.
We help you document the financial picture the court needs to see.
Visitation. Visitation schedules that worked when children were three rarely work when they are thirteen. School schedules, extracurriculars, a parent's work changes, a relocation, or a child's evolving relationship with each parent can all justify revisiting the parenting plan.
Alimony. Periodic alimony is modifiable and in some cases terminable. Remarriage or cohabitation of the receiving spouse, retirement, job loss, disability, or a substantial change in either party's financial circumstances can all be grounds. Note: alimony in gross (lump-sum alimony used as a property-distribution mechanism) is not modifiable for any reason.
When the other side won't follow the order:
Contempt of court. The mirror image of modification is contempt. Sometimes the other party simply will not do what the court ordered. They miss support payments. They withhold the children during your parenting time. They refuse to refinance the marital home or transfer the title to a vehicle. They ignore an injunction. Alabama courts take their orders seriously. Failure to obey a court order is contempt of court, and courts strongly disfavor parties who disobey their orders.
We can file a petition for contempt to: Compel the other party to comply with the existing order, recover unpaid child support or alimony and arrearages, recover your attorney's fees in many cases, pursue other remedies available under Alabama law including, in serious cases, incarceration of the non-compliant party.
If you are the one being threatened with a contempt action, we can also defend you, helping the court understand the circumstances behind any alleged non-compliance and protecting you from disproportionate penalties.
