What Must Be Done to Change Custody in Alabama After a Custody Order Is in Place

The custody arrangement that once worked for your child may no longer fit the life they are living now. Their school needs may have changed, their living situation may be different, or new concerns may have arisen about their care or well-being.

Whatever has changed, you may be looking at an existing custody order and wondering whether you still have to follow an arrangement that no longer seems right for your child. In Alabama, you generally must ask the court to modify the existing order and prove that the legal standard applicable to your custody arrangement has been met. 

At Kesling Law Firm, we help parents in Baldwin County and along the Alabama Gulf Coast understand what they must do to seek a custody change. Whether you are in Orange Beach, Gulf Shores, Josephine, Foley, Elberta, Summerdale, or Robertsdale, we can review your current order, what has changed since it was entered, and whether those changes may support modification. 

If you are considering a custody change, knowing what the court will expect from you can help you prepare for the process ahead. 

Determine Which Custody Modification Standard Applies

Before seeking a custody change, you need to determine which legal standard applies to your existing order. Alabama does not use the same modification standard in every custody case. 

When one parent was previously awarded primary physical custody, the parent seeking a change generally must meet the demanding standard set forth in Ex parte McLendon. The parent seeking modification must show a material change affecting the child’s welfare and that changing custody would materially promote the child’s welfare. The benefits of the proposed change must also outweigh the disruption of the child’s established custody arrangement. 

The standard can differ when neither parent was previously awarded primary physical custody, such as in certain joint physical custody arrangements. In those cases, Alabama courts may apply the best-interests-of-the-child standard rather than the more demanding McLendon standard, although the parent seeking modification still must show a material change in circumstances. Reviewing the existing order is therefore an important first step in determining what you will need to prove. 

Identify a Material Change Affecting Your Child

Next, identify what has materially changed since the existing custody order was entered and how that change affects your child. Simply preferring a different custody arrangement is generally not enough to justify modifying an established order. 

The relevant circumstances depend on your family. Changes involving your child’s home environment, education, health or safety, a parent’s ability to meet the child’s needs, or other developments affecting the child’s welfare may become important. 

A parent’s improved circumstances alone may not satisfy the McLendon standard. Remarriage, improved finances, or a better lifestyle does not necessarily establish that transferring custody would materially promote the child’s welfare. When considering child custody modification, the focus should therefore be on what has changed for your child and why the requested custody arrangement would address that change. 

Gather Evidence Supporting the Requested Custody Change

Once you have identified the change, you need evidence that shows the court what has happened and why it matters. General statements that the current custody arrangement is no longer working may not establish why the court should modify its existing order. 

Depending on the circumstances, relevant evidence could include school or attendance records, medical information, communications between the parents, records concerning parenting schedules, or testimony from people with firsthand knowledge of matters affecting the child. 

The evidence should connect the changed circumstances to your child’s welfare and the custody change you are requesting. Rather than simply documenting disagreements with the other parent, focus on facts that help explain why the existing arrangement should be reconsidered under the applicable legal standard. 

Ask the Court to Modify the Existing Custody Order

Once you have identified the basis for modification and gathered supporting evidence, you generally need to ask the court to modify the existing custody order. Your request should identify the custody change you seek and be supported by facts and evidence relevant to the applicable legal standard. If the other parent contests the requested modification, the court may need to hear evidence before deciding whether the existing arrangement should change. 

Parents may also agree that a different custody arrangement would work better. An agreement can affect how the matter proceeds, but parents should not assume that an informal arrangement has replaced the court’s existing order. The appropriate steps should be taken to have an agreed change reflected in a modified court order. 

Follow the Existing Order Until the Court Changes It

While seeking a modification, continue treating the existing custody order as the controlling order unless the court directs otherwise. Beginning a different schedule informally does not, by itself, rewrite the terms of the order already in place. 

This distinction can become especially important when parents have followed a different arrangement for some time. What has occurred in practice may be relevant to a later modification proceeding, but an informal arrangement and a court-ordered custody arrangement are not necessarily the same thing. 

If circumstances require immediate attention, the appropriate legal response will depend on the specific facts. Understanding what the existing order requires and what relief you are asking the court to provide can help you avoid creating additional disputes while the custody issue is being addressed. 

Discuss Your Custody Modification with Kesling Law Firm

Our attorney, Joshua G. Kesling, has practiced in Orange Beach since graduating from law school in 2007 and is a member of the Alabama State Bar and the Baldwin County Bar Association. With offices in Orange Beach and Foley, we help families across Baldwin County and the Alabama Gulf Coast with child custody matters. 

If your child's circumstances have changed, we can review your existing order, help determine which modification standard applies, and discuss the evidence relevant to your request. Contact us to discuss your situation and how our Baldwin County, Alabama child custody attorneys can help you determine your next steps.