Rel: September 5, 2025
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS SPECIAL TERM, 2025 _________________________
CL-2025-0231 _________________________
E.K.C.
v.
D.L.G.
Appeal from Cullman Juvenile Court (CS-19-900212.03)
MOORE, Presiding Judge.
E.K.C. ("the mother") appeals from a judgment entered by the
Cullman Juvenile Court ("the juvenile court") modifying its 2019
judgment relating to the custody of her two children with D.L.G. ("the
father"). For the following reasons, we reverse the judgment and remand
the case to the juvenile court. CL-2025-0231
Procedural Background
The mother and the father are the biological parents of two
children, who were born in 2018 and 2019, respectively. In 2019, the
juvenile court entered a judgment incorporating an agreement of the
parties relating to the custody of the children ("the 2019 judgment"). The
2019 judgment, among other things, awarded the parties joint legal
custody of the children, with the mother receiving final decision-making
authority for education and health-care matters; awarded the mother
sole physical custody of the children, subject to certain visitation rights
awarded to the father; and ordered the father to pay $400 per month for
child support. The judgment further provided that the father could visit
with the children three evenings a week from 5:00 p.m. to 9:00 p.m. and
once a week from 9:00 a.m. until 7:00 p.m., with overnight visits being
allowed only after the father obtained his own home. In 2024, the father
filed a petition to modify the 2019 judgment. 1
1In 2023, the mother filed a petition to modify the visitation and
child-support provisions of the 2019 judgment. The case commenced by that petition was consolidated with the underlying case, and the juvenile court denied the mother's modification petition. The mother appealed, and this court dismissed the appeal by order because the judgment denying her petition was not a final judgment. E.K.C. v. D.L.G. (No. CL- 2025-0230, Aug. 26, 2025). 2 CL-2025-0231
On March 28, 2025, the juvenile court entered a judgment granting
the father's modification petition ("the 2025 judgment"). The 2025
judgment, among other things, awarded the parties joint legal custody of
the children, with the father receiving final decision-making authority
over civic, cultural, athletic, and health-care matters and the mother
receiving the same authority over religious and academic matters, and
awarded the parties joint physical custody of the children to be exercised
on a rotating weekly basis. The mother filed a postjudgment motion to
alter, amend, or vacate the 2025 judgment, which the juvenile court
summarily denied. The mother timely appealed.
Issues
The mother argues that the juvenile court erred in modifying the
physical-custody and legal-custody provisions of the 2019 judgment.
Physical Custody
The parties agree that the 2019 judgment awarded the parties joint
legal custody and awarded the mother "primary" physical custody of their
two children, subject to the father's visitation rights. We construe the
2019 judgment as awarding the mother sole physical custody. See
Whitehead v. Whitehead, 214 So. 3d 367, 371 (Ala. Civ. App. 2016).
3 CL-2025-0231
When a judgment incorporating an agreement of parents awards sole
physical custody of a child to one parent, the noncustodial parent must
meet the standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala.
1984), to obtain a modification of the custody award. See Gallant v.
Gallant, 184 So. 3d 387, 394 (Ala. Civ. App. 2014). To meet the McLendon
standard, a noncustodial parent
"must prove to the satisfaction of the trial court (1) that the circumstances upon which the original judgment was based have changed, (2) that he or she is fit to act as a custodian for the child, and (3) that ' "the positive good brought about by the modification ... more than offset[s] the inherently disruptive effect caused by uprooting the child." ' Ex parte McLendon, 455 So.2d 863, 865 (Ala. 1984) (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala. Civ. App. 1976))."
K.U. v. J.C., 196 So. 3d 265, 268 (Ala. Civ. App. 2015).
The mother argues, among other things, that the juvenile court did
not receive sufficient evidence to support its decision to modify the
physical custody of the children pursuant to the McLendon standard.
This court presumes the correctness of a judgment based upon evidence
presented ore tenus. Ex parte Bryowsky, 676 So. 2d 1322, 1324 (Ala.
1996).
" '[W]e will not reverse [the judgment] unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's
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discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow.' "
Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994) (quoting Phillips v.
Phillips, 622 So. 2d 410, 412 (Ala. Civ. App. 1993)). However, this court
reviews the interpretation and application of the McLendon standard,
which involve pure questions of law, de novo. Gallant, 184 So. 3d at 401.
The juvenile court received the following evidence relating to the
physical-custody-modification issue. The mother testified that, since at
least 2018, she has resided in a house located on her parents' farm; her
parents and her grandmother reside nearby. After the parties' first child
was born, the parties lived together in the mother's house, and they were
still living together when their second child was born. The parties argued
frequently, but there was no proven domestic violence between them.
The parties ended their relationship in July 2021. After that, the
children continued to live with the mother, and she was their primary
caretaker, although she depended on her parents and her grandmother
to help her with the children. The mother developed a stable and
structured environment for the children in which she disciplined and
nurtured them. The mother enrolled them in an elementary school only
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five minutes from her house, and, although the children were sometimes
absent from school or tardy, the children excelled academically. The
children regularly attended church, and they were well-adjusted and
well-behaved. The father did not criticize the upbringing of the children;
he testified only that he was equally responsible for the children's success
because he had also raised them.
Until February 2023, the children regularly visited with the father.
According to the father, the parties did not strictly follow the visitation
schedule established in the 2019 judgment; the father testified that he
would keep the children for three or four days and then the mother would
keep them for three or four days. The mother testified that the children
had slept overnight at her house at least six days a week throughout their
lives. In February 2023, the mother unilaterally suspended the visitation
schedule, and the father did not regularly visit with the children after
that point. The mother testified that the father was moving around
frequently, was not consistent with his visits, and was not
communicating with her to inform her where he was living or to arrange
visits. At one point, the father lived in a dilapidated house that was
uninhabitable. The mother believed that, at another point, he was
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residing with friends in Boaz, which the father denied. The father
testified that he had been working on the dilapidated house, which is
owned by his employer, with a plan to purchase it after making it
habitable, but, he said, he had abandoned the project. The father said
that, after staying in that house temporarily, he had lived primarily with
his grandmother and, occasionally, with his brother. In March or April
2023, he moved into a house in Somerville, approximately 20 minutes
from the children's school, where he resided with his girlfriend. The
father admitted that he and the mother did not communicate well.
The father testified that he did not take immediate legal action to
enforce his visitation rights. In May 2023, the father attempted to visit
the children on the older child's birthday. He appeared at the mother's
house with a present for the older child, but, he said, the mother took the
children inside her house and locked the door. The father said that he
had knocked on the door repeatedly but that the mother would not allow
him to enter. The father testified that he had been intent on seeing the
children and giving the older child his birthday gift and that the children
had expressed that they wanted to see him, but, he said, the mother was
aggressively denying him his right to visit them. The father testified that
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he had eventually left the mother's house but that he had returned
approximately four hours later. Upon his return, the father banged on
the door, waking the mother's boyfriend, who was napping inside.
According to the mother's boyfriend, the father pushed open the door with
his shoulder, and, when the father entered the premises, the two men
"wrestled." The juvenile court reviewed a video of the scuffle taken by
the mother. The mother testified that the father had choked her
boyfriend and that he would not get off her boyfriend until she called the
police, at which time, the mother said, the father left. The father testified
that the children had been in the back of the house and that they had not
witnessed that incident. The father was indicted for burglary in the third
degree and domestic violence in the second degree; the charges were still
pending at the time of the custody-modification trial. The mother
hesitated when asked if she wanted the father to go to prison over the
incident, but she ultimately testified that she did not want that to occur.
Following the May 2023 incident, the mother continued to prevent
the father from seeing the children. In June 2023, the mother obtained
a protection-from-abuse order against the father; the father twice
violated that order in 2023 by texting the mother to reinitiate visitation.
8 CL-2025-0231
He was facing criminal charges for those violations at the time of the
custody-modification trial. In July 2023, the mother filed a petition in
the juvenile court to modify the father's visitation rights. See note 1,
supra. The father appeared in that case and denied the allegations in
the petition, but his visitation did not immediately resume. The father
testified that the juvenile court informally ordered the parties to abide
by the 2019 judgment to enable the father to visit the children over the
Christmas holidays in 2023, but, he said, the mother had only allowed
him to talk to the children through a video application known as
FaceTime on Christmas day.
At some point, the father commenced a contempt action against the
mother for denying him visitation. On January 8, 2024, the juvenile
court held a hearing on that petition, and, on January 31, 2024, the
juvenile court entered a judgment finding the mother in contempt for
violating the visitation provisions of the 2019 judgment on 182 occasions.
Following the entry of the contempt judgment, the father began regularly
visiting with the children again. The father testified that the children
had been excited to renew their bond with him and that he had developed
a strong relationship with the children after visitation was resumed.
9 CL-2025-0231
However, the father testified that he had been denied visitation on eight
occasions in 2024 and 2025, and he catalogued the numerous occasions
on which the mother was late in meeting him for the visitation transfers,
which, he said, had resulted in his missing approximately five hours of
visitation time with the children. The mother testified that she had a
valid excuse for any missed visits. The father also testified that the
mother would not agree to allow the children to travel to Costa Rica with
the father during the school year or to allow him extra time with the
children beyond the schedule established in the 2019 judgment.
Additionally, he said, the mother would not allow him to pick up the
children from school. Instead, he said, the mother would pick up the
children and meet the father at a nearby retail store a few minutes later.
The father estimated that the mother had been 80% in compliance with
the visitation schedule since the contempt hearing.
On March 8, 2024, the father filed his petition to modify the custody
provisions of the 2019 judgment. The father testified that the mother
had not exercised good judgment or acted in the best interests of the
children by denying him visitation for close to one year. The father also
said that the mother was being petty by not allowing him more time with
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the children. The father testified that he wanted to split custody of the
children with the mother on a rotating weekly basis. The mother testified
that she did not believe that it would be in the best interests of the
children to swap custody back and forth each week. The mother said that
she had established a good routine for the children that was benefiting
them and that it would be best for her to remain their sole physical
custodian. The mother believed that the 2019 judgment should be
modified only to provide a more structured and detailed visitation
schedule.
The evidence in the record shows that the parties have been
involved in a visitation dispute since February 2023, when the mother
unilaterally suspended visits between the father and the children. In
January 2024, the juvenile court determined that the mother was in
contempt of the visitation provisions of the 2019 judgment. After entry
of the January 2024 judgment, visitation resumed, but the mother has
not been completely faithful to the visitation schedule, and she has not
allowed the father any additional visitation that he has requested. The
father maintained that the mother had not acted in the best interests of
the children in curtailing his visitation, and he requested that the
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juvenile court modify the custody of the children so that he would exercise
physical custody over them on a rotating weekly basis instead of being
limited to visitation with them according to the schedule established in
the 2019 judgment.
"[M]odification of custody is not the proper remedy for a visitation
dispute. ... 'Rather, the appropriate remedy in such a situation is to
punish the custodial parent for contempt, not to uproot the children.' "
Cochran v. Cochran, 5 So. 3d 1228-29 (quoting Lami v. Lami, 564 So. 2d
969, 970 (Ala. Civ. App. 1989)). However, a trial court may consider
modifying custody when it is shown that a custodial parent has denied
visitation as part of an effort to deliberately obstruct the relationship
between the child and the noncustodial parent. In Fricks v. Wood, 807
So. 2d 561, 564 (Ala. Civ. App. 2001), the Autauga Circuit Court entered
a divorce judgment incorporating an agreement between the parties,
pursuant to which the wife was to be the sole physical custodian of the
child born during the parties' marriage. After the divorce, the wife
remarried and listed her new husband as the father of the child for school
purposes, not even allowing her former husband to pick up the child from
school. The wife denied the former husband scheduled visitation. The
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circuit court modified the divorce judgment to award the former husband
sole physical custody of the child. On appeal, this court determined that
the circuit court could have reasonably concluded that the wife was
deliberately obstructing the relationship between the former husband
and the child, and we affirmed the judgment. See also C.J.L. v. M.W.B.,
879 So. 2d 1169, 1180 (Ala. Civ. App. 2003).
However, even in cases in which a noncustodial parent claims that
the custodial parent is alienating the child by withholding visitation, the
burden still rests on the noncustodial parent to prove each element of the
McLendon standard.
"The McLendon standard creates a ' "rule of repose" ' by ' "allowing the child ... the valuable benefit of stability and the right to put down into its environment those roots necessary for the child's healthy growth into adolescence and adulthood." ' Ex parte McLendon, 455 So. 2d at 865 (quoting Wood v. Wood, 333 So. 2d [826,] 828 [(Ala. Civ. App. 1976)]). The McLendon standard is designed 'to minimize disruptive changes of custody because this Court presumes that stability is inherently more beneficial to a child than disruption.' Ex parte Cleghorn, 993 So. 2d [462,] 468 [(Ala. 2008)]. When implementing the McLendon standard, a trial court should allow a transfer of custody 'only after a sifting inquiry to assure that the stability and other interests of the child ... have been properly considered.' Gallant v. Gallant, 184 So. 3d [387,] 399 [(Ala. Civ. App. 2014)]."
13 CL-2025-0231
K.U., 196 So. 3d at 272. "To affirm the judgment modifying the physical
custody of the child, this court must discern the evidence from which the
juvenile court could have reasonably inferred that the interests of the
child would be 'materially promoted' by a change in custody." Id. at 277.
In Fricks, this court did not affirm the judgment solely because the
former husband proved that the wife was attempting to alienate the child
from him, but because he also showed that his "home would provide a
more suitable environment for the child's development." 807 So. 2d at
564. This court cited evidence indicating that the wife had remarried an
alcoholic, that the child was being abused in the wife's home, and that
the wife and her new husband were planning to move the family to
Germany. On the other hand, the former husband had remarried and
kept a suitable home with his new wife and the child's half sibling, with
whom the child had a strong and nurturing relationship.
In this case, the father did not dispute that the mother was
providing good care for the children and that they were thriving under
the current custody arrangement. He insisted only that he also should
be credited for his efforts in raising the children under that same custody
arrangement. The father failed to present any evidence as to how the
14 CL-2025-0231
children would benefit from a modification of the current custody
arrangement. The children had lived with the mother their entire lives,
and, despite not having seen the father for close to one year, according to
the father, they maintained a strong relationship with him. The father
did not demonstrate how removing the children from the only home they
had ever known, where the mother provided a safe, structured, and
nurturing environment in which the children were surrounded by caring
relatives, and alternating their custody on a week-to-week basis would
improve their lives. The father did not present any evidence regarding
the conditions of his housing, the relationship between the children and
his girlfriend, with whom he lived, his plan of care for the children when
he could not be present, his intentions regarding their church attendance,
or any efforts that he would make to counteract the disruption in their
lives that would be caused by a modification of custody. Without that
vital evidence, the juvenile court could not have reasonably determined
that the father had met the McLendon standard.
We do not condone the mother's conduct in unilaterally suspending
visitation between the father and the children and in blocking the father
from visiting with the children on the older child's birthday. Reviewing
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the 29 paragraphs of the 2025 judgment, it is evident that the juvenile
court went to great lengths to clarify the rights and responsibilities of the
parties and to regulate their relationship to prevent any further
obstruction by the mother. However, the juvenile court exceeded its
discretion in modifying the physical custody of the children. We believe
many of the provisions in the 2025 judgment would be appropriate to
assure the father significant and meaningful time with the children and
to reduce further visitation disputes between the parties, but the juvenile
court did not receive sufficient evidence to justify changing custody even
to joint physical custody. We, therefore, reverse the judgment insofar as
it modifies the physical custody of the children. 2
Legal Custody
The mother also argues that the juvenile court erred in modifying
the legal custody of the children. The 2019 judgment awarded the mother
final decision-making authority for education and health-care matters; it
did not address civic, cultural, athletic, and other matters. The 2025
judgment awards the father final decision-making authority over civic,
2The mother has raised other arguments for reversing the modification of the physical-custody provision of the 2019 judgment, but, based on our disposition, we pretermit discussion of those arguments. 16 CL-2025-0231
cultural, athletic, and healthcare matters; the mother was awarded the
same authority over religious and academic matters. The mother argues
that the juvenile court did not receive sufficient evidence to modify legal
custody.
Pursuant to Ala. Code 1975, § 30-3-153, a trial court may enter an
order
"[d]esignating the parent possessing primary authority and responsibility regarding involvement of the minor child in academic, religious, civic, cultural, athletic, and other activities, and in medical and dental care if the parents are unable to agree on these decisions. The exercise of this primary authority is not intended to negate the responsibility of the parties to notify and communicate with each other as provided in [Title, Chapter 3, Article 7, Ala. Code 1975]."
A trial court may modify an order designating one parent as the final
decision-making authority if the trial court finds that the best interests
of the child will be served by the modification. See Harris v. Harris, 775
So. 2d 213, 215 (Ala. Civ. App. 1999). In making that determination, the
trial court exercises considerable judicial discretion, and its decision will
not be disturbed unless the trial court exceeds its discretion or unless the
judgment is plainly or palpably wrong. Hodgins v. Hodgins, 84 So. 3d
116, 125 (Ala. Civ. App. 2011).
17 CL-2025-0231
The father did not present any evidence establishing that it would
be in the best interests of the children to modify the 2019 judgment
insofar as it awarded the mother final decision-making authority over the
children's medical and dental care. The record contains no evidence
regarding the medical and dental care the children were receiving, the
decisions the mother was or was not making concerning that care, or the
reason why the father should now have the right to make those decisions
in the event of a disagreement between the parties. The juvenile court
did not have any evidentiary basis for modifying the 2019 judgment
insofar as it designated the mother as the final decision-making
authority regarding the children's health care.
The father also failed to present any evidence demonstrating that
it was in the best interests of the children to award him final decision-
making authority over the children's civic, cultural, and athletic
activities. The father testified that the mother had failed to personally
provide him with a schedule for the children's Tee-ball games, but the
mother testified that the father had obtained the schedule independently.
The record contains no other reference to the children's athletic activities
or their civic and cultural activities. The father presented no evidence
18 CL-2025-0231
indicating that the parties had ever disagreed over the civil, cultural, or
athletic activities of the children or evidence to justify awarding him
superior decision-making authority over those activities. Thus, the
juvenile court lacked sufficient evidence to modify the 2019 judgment,
which did not afford either parent final decision-making authority over
the children's civil, cultural, and athletic activities.
For the foregoing reasons, we reverse the judgment insofar as it
modified the provision of the 2019 judgment regarding final decision-
making authority.
Conclusion
The juvenile court did not receive sufficient evidence to sustain its
judgment modifying the physical and legal custody of the children.
Therefore, we reverse the judgment and remand the case for the entry of
a judgment consistent with this opinion.
REVERSED AND REMANDED.
Edwards, Hanson, Fridy, and Bowden, JJ., concur.