May 2017

McLendon:  The Custody Modification Standard

After the dust has died a little from a divorce, one parent may be unhappy with the custody arrangement and want to change it.  In order to be successful, that parent must satisfy the requirements set out in a case called Ex Parte McLendon, 455 So. 2d 863 (Ala. 1984).  The factors a court considers regarding a change in custody are:  (1) that there has been a material change in circumstances; (2) that the good of the proposed change will offset the disruptive effect of uprooting the child; and (3) that the proposed change will materially promote the minor child's best interests.  All three factors must be met by the party seeking the custody change.  Many parents do not appreciate what a high standard McLendon is, and how hard it is to change custody.   The best advice is not to rush through the initial divorce, and take the time to get the custody arrangement you want.   The second-best advice is that, if you need a child-custody modification, consult an attorney who is knowledgeable in this area.

A divorce with children usually includes an order called an, "Income Withholding Order" or "IWO." This order commands an employer to withhold child support payments from its employee's paycheck.  If the non-custodial parent ("NCP") agrees to pay the custodial parent directly, the IWO will not be served (layman's term: sent by the Clerk) on the employer, and the child support will not be withheld from the NCP's paycheck.  


If, however, the NCP falls behind in his or her payments - at least a month's worth - there is a simple procedure to begin having future child support payments withheld.  The process involves the custodial parent giving sworn testimony in an affidavit, serving the IWO on the employer and giving notice to the NCP.  The parties do not have to go back into court.  (Note that the custodial parent would have to take the NCP back to court to recover all missed payments, so it's a good idea not to wait too long to do this.)


To ensure that you are receiving all the child support payments you are owed, contact an attorney who is experienced in such matters.      

June 2017

Income Withholding Orders