As a general rule the state (and its appendage the courts) has an interest in bringing matters to a conclusion. The state has adopted general principles of law such as res judicata and estoppel that ensure that court cases acquire some sense of finality and have binding effect on the parties. However, custody cases are specifically exempted from such principles and the court maintains continuing jurisdiction over a matter throughout the youth of a child. The law, and rules of procedure, offers the parties the option of modification at any time. The state’s interest in creating finality in custody matters has always been subservient to constitutional concerns. The U.S. Supreme Court held: “the Constitution recognizes bigger values than speed and efficiency.” Stanley v. Illinois, 405 US 645, 656 (1972). The fundamental liberty interests of parents and children are “bigger values” that cannot be interfered with to facilitate the state’s desire for efficiency. In truth, if the state’s interest in efficiency were paramount then there would be no need for the McLendon standard at all, as no modification actions would be allowed. Thus the idea that the state’s interest in efficiency and the finality of orders as a compelling state interest may be dismissed out of hand.
McLendon also presumes that moving a child will negatively impact the child. However, this assumption is not based on or supported by any law, legal theory, statute, sociological data, or psychological data. It is nothing more than a homespun creature of rhetoric. The drafting judge simply assumed that “stability” was to be preferred and that stability could be achieved by his newly concocted standard that we now know as the McLendon standard. Unfortunately as previously discussed the McLendon does not satisfy the goal of stability. Stability for children comes from having strong relationships with both of their parents. Science has confirmed what God, nature and centuries of human experience have shown, that a child should have both parents whenever possible.