This nation was born of a value system that prized liberty and freedom over life itself. Our founders are famous for saying such things as "Give me liberty or give me death." (Patrick Henry). With the Declaration of Independence our fathers proclaimed not just to mother England, but to the world that the right to "life, liberty and the pursuit of happiness" are natural rights belonging to all men and women. Our founders then prepared a Constitution for the purpose of protecting those natural rights that we were endowed with by our Creator.  The Supreme COurt recognized that among those liberty interests protected by the Constitution is the right to raise our own children how we see fit. John Locke pictured to the left was a political philosopher that influenced our founders and is credited with inspiring Thomas Jefferson and others. He stated in his Second Treatise of Government, Chap. 6. : 
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"Sec. 58 The power then that parents have over their children arises from that duty which is incumbent upon them to take care of their offspring, during the imperfect state of childhood. To inform the mind and govern the actions of their yet ignorant nonage, till reason shall take its place, and ease them of that trouble, is what the children want, and the parents are bound to: for God having given man an understanding to direct his actions, has allowed him a freedom of will, and liberty of acting, as properly belonging thereto, within the bounds of the law he is under. But whilest he is in an estate, wherein he has not understanding of his own to direct his will, he is not to have any will of his own to follow: he that understands for him, must will for him too; he must prescribe to his will , and regulate his actions; but when he comes to the estate that made his father a freeman, the son is a freeman too.

"Sec. 63 God hath made it their business to employ this care on their offspring, and hath placed in them suitable inclinations of tenderness and concern to temper this power, to apply it, as his wisdom designed it, to the children’s good, as long as they should need to be under it.

"Sec. 67 The nourishment and education of their children is a charge so incumbent on parents for their children’s good that nothing can absolve them from taking care of it: and though the power of commanding and chastising them go along with it, yet God hath woven into the principles of human nature such a tenderness for their offspring that there is little fear that parents should use their power with too much rigour; the excess is seldom on the severe side; the strong bias of nature drawing the other way.

"Sec. 71 But these two powers, political and paternal, are so perfectly distinct and separate; are built upon so different foundations, and given to so different ends, that every subject that is a father, has as much a paternal power over his children as the prince has over his; and every prince that has parents, owes them as much filial duty and obedience, as the meanest of his subjects do to their’s; and can therefore contain  not any part or degree of that kind of dominion, which a prince or magistrate has over his subject."

Unfortunately, the current child support system in this state places no emphasis on the important role of a parent to nourish, educate, or care for a child. The system places sole emphasis on the parent's responsibility to pay for a child's upkeep. No protection is afforded a child's right and need to look to their parent for guidance or nay of the other benefits derived from the parent-child relationship. When every part of a parent save their pocketbook is removed from a child the loss is terrible. As cited to prior blogs parents who have relationships with their children, provide for their children. Child support is based on a premise that the less time a parent spends with a child the more they should pay for that child. Orders of the court effectively cut of parental relationships, then send the injured parent a bill. This has been ineffective in the past will ever remain so. If our concern is for the child's welfare, then we must do more to ensure that parenting time with both parents is facilitated. Then can a parent truly support a child with not just money, but also love, affection, nurture, protection, instruction, time, energy and talent. 

The Courts have long held that a custody determination cannot be based on something arbitrary, such as the sex of the parent. Ex parte Devine, 398 So. 2d 686 (Ala. 1981). Under McLendon custody determinations are not expressly based on sex but they are nonetheless arbitrary. Because parental rights are fundamental liberty interests they cannot be infringed upon for an arbitrary reason. In fact, parental rights can only be infringed upon by the state, if the state can show a compelling state interest. Ex parte ERG, 73 So. 3d 634 (Ala. 2011); Troxel v. Granville, 530 U.S. 57 (2000). McLendon itself never performed a constitutional analysis and never specifically identified what state interest is involved. However, a review of the opinion offers two possible bases for the McLendon standard, to wit: the state’s interest in the finality of orders, and a feared harm that the child will be harmed by uprooting it from a single parent situation. Both of these reasons are arbitrary and serve no compelling state interest.

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.

The grandparent visitation bill must not be signed into law. As written this bill completely disregards the rights of fit parents. The state would have the power to interfere in every parent-child relationship in Alabama without any state interest being involved. Under this bill if a parent is an ideal parent in every regard they can still be forced to surrender to the court the authority to decide who their children spend time with. Under this bill a fit and loving parent who allows their children to regularly visit with grandparents they cannot even hint to the grandparents that such visits might not continue. If they do then the grandparents can file a petition with the court to force regular visits that if not complied with may result in the jailing of the parent pursuant to the court's contempt powers. Under this bill a grandparent is able to wield the incredible power of the state if they can show (1) that they have had regular contact with the child for 12 months, and (2) that the child's feelings could be hurt (emotional harm) if the grandparent does not continue to visit with the child. Our legislators must not console themselves and say that "surely, no judge would use this statute in so harmful a manner." However, experience tells us otherwise, and even without the benefit of experience the risk is too great. If a judge does undertake to use these powers granted herein who can stop him? The answer is no one; at least not anytime soon. The judge's ruling is protected in the first instance will be protected by the fact that there will be no jury there to monitor the situation. Further, in many cases these proceedings are not open to the public and can be done without any oversight by the public on the trial court level. Then if the matter is appealed the judge's use of power will be protected again under the ore tenus rule. This rule allows the appellate court to simply trust the trial court's assessment of the facts. Thereby the appeals court is free to say, "Well, I wasn't there at the trial so I have to believe that the child's feelings  might be hurt in the future if grandpa cannot come over to the house anymore." The only way the legal damage can be undone is by years of costly litigation and appeals. And once the litigation is over the family is left in pieces. They have just spent years warring against each other as enemies and now are left to find a way to be a family again. 

This bill as written grants incredible power to the state over intimate, personal, family relationships without even a pretense of preserving a state interest. It is hard to imagine a more invasive, authoritarian piece of legislation.

A copy of the bill is provided below.

As previously discussed the McLendon Standard is a rule of repose and strongly disfavors any change that would increase parenting time and promote the best interests of a child.  Alabama Code § 30-3-150 states that “[i]t is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage.” Further, McLendon is repugnant to the codified “general philosophy in this state that children need both parents, even after a divorce, established in [§] 30-3-150". Alabama Code § 30-3-160.

McLendon’s policy of disfavoring shared parenting and promoting limited contact between children and their fit, caring parents predates the adoption of the aforementioned code sections which were adopted in 1997 and 2004, respectively. Ex parte McLendon, 455 So.2d 863 (Ala.1984); Ala. Code § 30-3-150; and § 30-3­-160.  In short the legislature has abandoned the discriminatory language and stated intent of McLendon. Any conflict between McLendon and the more recently adopted code sections must be resolved in favor of the Code of Alabama. Baldwin County v. Jenkins, 494 So. 2d 584, 588 (Ala. 1986) (“the latest expression of the legislature is the law… Where a conflict exists between statutes, the last enactment must take precedence.”); citing Middleton v. General Water Works & Electric Corporation,  149 So. 351, cert. denied, 227 Ala. 219, 149 So. 352 (1933); and Laney v. Jefferson County, 32 So.2d 542 (1947)). Further, the separation of powers doctrine of the US Constitution dictates that it is the role of the legislature to make laws and the judiciary to interpret them. The legislature has spoken on the issue; therefore a parent’s rights must be enforced. See generally for the principle of the separation of powers doctrine Ex parte Christopher, [No. 1120387], ___So. 3d___ (Ala. 2013).

The McLendon standard is not founded on constitutional doctrines or principles, nor does it proclaim to be. McLendon has been overturned by statute and is thus void. Any attempt to reconcile McLendon with the Code would be a tortured one as the two occupy positions too opposite and too distant to be reconciled. Either the state (and thus its appendage the court) must favor shared parenting rights and responsibilities or it must abandon those priorities for some unstated cause to satisfy McLendon.

The McLendon standard is unconstitutional in that it violates the equal protection clause of the 14th Amendment and the separation of powers doctrine. Father has a fundamental legal right to the custody of his children.

The right to maintain family integrity is a fundamental right, protected by due process requirements of the Constitution. Hamilton v. State, 410 So. 2d 64 (Ala.  Civ. App. 1982), citing May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). See also Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). This affords a parent a prima facie right to custody of its child. Matter of Mastin, 462 So.2d 938 (Ala.Civ.App.1984).

Moore v. State of Alabama, Dept. of Pensions and Security, 470 So. 2d. 1269, 1270 (Ala. Civ. App. 1985).

The default rule is that a child belongs with their parent. AJHT v. KOH, 983 So. 2d 394 (Ala. Civ. App. 2007)(“the maintenance of family integrity is a fundamental right and that every parent has a prima facie right to custody of his or her child.”); See also Ex parte ERG, 73 So. 3d 634 (Ala. 2011). This right is guaranteed by the Constitution. Troxel v. Granville, 530 U.S. 57 (2000).

The equal protection clause of the 14th Amendment[1] requires that both parents be treated the same by the courts regarding their rights to parent their children. This is the reason that the “tender years doctrine” was abolished. It violated equal protection and made separate classes of parents, with female parents receiving preferential treatment. Equal protection prevents such discrimination. Equal protection demands that all fit parents be treated equally by the courts. A prior custody determination does not give the court license to violate the equal protection clause.

Because Father’s rights represent a fundamental liberty interest any government interference with his rights must meet the strict scrutiny standard. Ex parte ERG, 73 So. 3d 634 (Ala. 2011); Troxel v. Granville, 530 U.S. 57 (2000). Strict scrutiny requires that the government show a compelling state interest, advanced by the least restrictive means before it can interfere with a right. Id. The McLendon standard creates classes of parents without any compelling state interest to do so. The Court has explained the McLendon standard thusly:

"`In situations in which the parents have joint legal custody, but a previous judicial determination has granted primary physical custody to one parent, the other parent, in order to obtain a change in custody, must meet the burden set out in Ex parte McLendon [, 455 So. 2d 463 (Ala. 1984)]. See Scholl v. Parsons, 655 So. 2d 1060, 1062 (Ala. Civ. App. 1995). The burden set out in McLendon requires the parent seeking a custody change to demonstrate that a material change in circumstances has occurred since the previous judgment, that the child's best interests will be materially promoted by a change of custody, and that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody. Ex parte McLendon, 455 So. 2d at 866.

S.L.L. v. L.S., ___ So. 3d ___, 2010 WL 1265200 *5 (Ala. Civ. App., April 2, 2010) citing Dean v. Dean, 998 So. 2d 1060, 1064-65 (Ala. Civ. App. 2008).

Following a custody determination a fit non-custodial parent is forever held to a different standard than a custodial parent by the courts. A non-custodial parent seeking to modify custody must not only show that a change in custody would serve the best interests of the child or a mere change of circumstance, but he must also show a material change in circumstances has occurred, and that the benefit of the proposed change in custody outweighs the disruptive effect of a change in custody. Id. This heightened standard is not applied to the custodial parent, nor is it applied to parents with equal/joint physical custody. Ex parte Couch, 521 So. 2d 987 (Ala. 1988). Different classes of parents have been created by McLendon despite the fact that all fit parents have the same rights.[2]

McLendon, by admission, is a rule of repose, meaning that the purpose of McLendon is to prevent “disruptive” changes in custody or further petitions regarding changes in custody. Ex parte Cleghorn, 993 So. 2d 462 (Ala. 2008). However, this reasoning is fundamentally flawed. There is no scientific data to support the claim that changing custody between parents is “inherently disruptive.” In fact, it has been universally accepted in the mental health community that children benefit from positive relationships with both parents. See Using Child Development Research to Make Appropriate Custody and Access Decisions for young Children, by Joan B. Kelly and Micheal E. Lamb, in Family and Conciliation Courts Review, Vol. 38 No. 3, July 2000, 297-311,[3] see also Children’s Living Arrangements Following Separation and Divorce: Insights From Empirical and Clinical Research, by Joan B. Kelly, in Family Process Vol. 46, No. 1, 35-52, at 46 (2007)(“A meta-analysis of 33 studies comparing joint physical and sole maternal custody from court, convenience, and school-based samples indicated that children in joint physical custody arrangements were better adjusted across multiple measures of general, behavioral, and emotional adjustment, self esteem, family relations, and divorce-specific adjustment. Regardless of whether the ratings were provided by mothers, fathers, teachers, clinicians, or the children themselves, joint custody children were better adjusted than sole maternal custody children. Although joint custody parents reported less past and current conflict compared with sole custody parents, conflict was not a predictor of the joint custody advantage in child adjustment.”). Further, studies have consistently held that frequent parenting time exchanges are actually preferable rather than disruptive. Id. At 304 (parenting schedules should involve “more transitions, rather than fewer to ensure the continuity of both relationships”).[4] Far more disruptive is the negating of the parent child relationship in an effort to avoid inconveniencing the court. Id at 304, 309.[5] Preventing further petitions is not a compelling state interest.[6] Custody petitions present an inconvenience for the courts. An inconvenience is not a compelling state interest. Further, the Alabama Supreme Court has held that the best interests of the child “are incredibly important, to be sure, but, absent more, they do not rise to the level of a compelling state interest.” Ex parte ERG, 73 So. 3d 634, 647 (Ala. 2011). Sadly, McLendon style custody situations and analysis seldom if ever serves the best interests of the child. Id.

The McLendon standard cannot withstand strict scrutiny. Further, the McLendon standard fails to satisfy the “least restrictive means” test as well. The McLendon standard therefore is unconstitutional. This Court therefore must apply a best interest standard, treating the parties equally if it is to satisfy its obligations under the equal protection clause.

Further, the McLendon standard is unconstitutional in that it violates the separation of powers doctrine.  McLendon puts in place additional requirements that are not found in the Code of Alabama.  The Code of Alabama does not explicitly delineate different standards of review in custody cases based on factors such as identity of the filing party or whether the Court is hearing a modification rather than an initial divorce proceeding or a paternity action.

In McLendon the Court created a modification standard that was not then, and is not now, adopted by the legislature. No matter how well intentioned the Court cannot decide cases based on what it believes the law should, but does not, state. See Benjamin Cardozo, The Nature of the Judicial Process, 141 (1921)(“[The judge] is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness.”).

Recently, the Alabama Supreme Court has rejected the long held precedent of ex parte Bayliss, on the grounds that it violated the separation of powers doctrine. Christopher v. Christopher, [Ms. 1120387, October 4, 2013] ___ So. 3d ___ (Ala. 2013). McLendon suffers from the same defects as Bayliss and is thus due to be overturned.



[1] The McLendon Standard also violates the due process clause of the 14th Amendment. The McLendon Standard violates substantive and procedural due process rights in that it creates both an unfair process and arbitrary outcomes. Alabama Republican Party v. McGinley, 893 So. 2d 337 (Ala. 2004).


[2] Interestingly, in Couch the court admitted “There are two different standards for reviewing custody arrangements.” 521 So. 2d at 989. The Court went on to recognize that “[w]hen a court makes an initial determination of custody, each parent has an equal right to try to gain custody of the children.” Id. However, the Court never identifies a compelling state interest that is served by infringing on these rights when a modification is requested.


[3] “In general, relationships with parents play a crucial role in shaping children’s social, emotional, personal, and cognitive, development, and there is substantial literature documenting the adverse effects of disrupted parent-child relationships on children’s development and adjustment (Lamb, 1999; Lamb, Hwang, Ketterlinus & Fracasso, 1999). The evidence further shows that children who are deprived of meaningful relationships with one of their parents are at greater risk psychologically, even when they are able to maintain relationships with the other of their parents. Stated differently, there is substantial evidence that children are more likely to attain their psychological potential when they are able to develop and maintain meaningful relationships with both of their parents, whether the two parents live together or not.” At 303.


[4] “Overall, the empirical literature demonstrates numerous benefits to children, including better psychological and behavioral adjustment and academic achievement, when their living arrangements enable supportive and loving fathers to be actively involved in their children’s lives on a weekly and regular basis, including a combination of overnights and school-related and leisure time… Those children and adolescents who have lived in shared physical custody arrangements are generally satisfied, feel loved, report less feelings of loss, and do not frame their lives through the lens of parental divorce, compared with those who lived in sole custody of their mothers. Young children with attachments to both parents need sufficient contact with their adequate nonresident parents without prolonged separations of many days or weeks to maintain meaningful and close relationships.” Children’s Living Arrangements Following Separation and Divorce: Insights From Empirical and Clinical Research, by Joan B. Kelly, in Family Process Vol. 46, No. 1, 35-52, at 46 (2007).


[5] “children are enriched by regular, diverse, and appropriate interactions with two involved and emotionally supportive parents, and this is no less true for school-age children as they journey towards adolescence. Regardless of who has been the primary care taker, therefore, children benefit from the extensive contact that fosters meaningful father-child and mother-child relationships.”


[6] The Alabama Supreme Court has recently rejected the notion that the state has an over-riding compelling interest in the outcome of custody/support cases. The language in Bayliss that the stability of the government is at stake in a custody dispute has been emphatically rejected. Christopher v. Christopher, [Ms. 1120387, October 4, 2013] ___ So. 3d ___ (Ala. 2013). 

Abraham Lincoln practiced law in Illinois before becoming president. In his practice he experienced many of the same frustrations you and I face when dealing with the courts. Lincoln was once heard to complain that some judgrs "would hang a man for blowing his nose in the street, but ... would quash the indictment if it failed to specify what hand he blew it with." There are two rules that the appeals court frequently relies on which have sometimes been used to create the sort of silliness that Lincoln here laments. The first is the ore tenus rule. This rule suggests that the appeals court should be slow to second guess the trial court's opinion of the facts because the trial judge was there when the testimony was offered and could look the witnesses over and judge their credibility. This reasoning is sound but in some cases has been taken to extremes. I have seen cases where this rule has been used to simply ignore evidence and facts altogether. I remember one case where a mother removed her children from their home (that was paid for by the father) and moved 1000 miles to live in a tent, then a barn so that mother could pursue a new romance. Though these facts were undisputed at the trial court they were ignored on appeal and deleted from any mention by the court. I have also seen ore tenus stretched in other cases to say a question of fact could be created by a party speculating on events that could have, but in fact never did occur. These silly outcomes are most common in divorce and family court cases where there is no jury. I believe that a simple cure would be to have these cases recorded with video equipment. Then the recording could be sent up on appeal to make sure the witnesses can be analized and ore tenus retired. Instant replay was intoduced into football because getting it right was prioritized over other concerns. Instant replay needs to be introduced into our court system for the same reason. Until then watch out for ore tenus on your appeal.

Another rule that is sometimes abused on appeal is ARAP 28 which requires parties to support all of their arguments with supporting law and facts. This is a good idea as well. The appeals court should not be required to do your research for you. However, there have been those cases that are well reasoned and supported yet still thrashed by a stretching of this rule. This rule when taken to the extreme is used to imply that every word of a brief must be footnoted with a dictionary definition. While Bill Clinton may have argued that he could not answer a question until the word "is" was defined for him, the rest of us reguire no such absurdity. This rule has elsewhere been used to prevent consideration of new arguments. If a new argument is made that has never been made before whwre do you cite to for an original thought? And still worse, this rule has been used disingenuously in the hopes that no one will go back and read the well argued brief. After all, the courts publish their own opinions not the lawyers. To find that you will need to do some digging.

These two rules, though well meaning, present special challenges on appeal. Any attorney or litigant on appeal needs to be as careful as possible when navigating these rules.

Appealing your case may be the only way to correct a ruling in the trial court. You can and usually should file a post trial motion to ask the court to reconsider. This makes sure the trial court has an adequate opportunity to get it right. Filing a post judgment motion will also help you preserve all of your issues for appeal. And if you don't preserve the issues for appeal, the appellate court won't let you raise them later. Get a good appeals attorney and make sure you file on time. Good appeals attorneys are hard to find. They must be experienced and excellent writers. If you are not happy with your divorce decree or custody support order call a competent appeal attorney immediately to make sure you don't lose your appeal just for filing late.