Smith v. Smith – Alabama Child Custody Modification

Posted by Steven D. Eversole | Apr 23, 2015 | 0 Comments

The Alabama Court of Civil Appeals affirmed a trial court's modification of child custody in Smith v. Smith, a recent appeal from the Mobile Circuit Court, which gave father full custody and granted the mother visitation and ordered her to pay child support.


This was a significant shift in the arrangement that had been previously agreed upon, wherein parents had joint legal custody, but the mother primary physical custody, with visitation awarded to the father, who was required to pay child support.

Generally speaking, family courts in Alabama are not eager to initiate changes in child custody unless there is a significant change in circumstance or unless all parties agree that it's in the best interests of the child. The standard was set in the 1984 case of Ex Parte McLendon. The court ultimately decided in that case that a parent seeking to obtain a change in child custody has to demonstrate the following things:

  • There has been a material change in circumstance that has occurred since the previous custody judgment was made;
  • The child's best interests will be materially promoted by a custody change;
  • The benefits of a custody change will more than offset any disruptive effect that would result from it.

The standard is stringent because the court does not want to disrupt the child's life just because his or her parents had a disagreement.

In the Smith case, father filed petitions seeking both temporary custody and a modification of the original child support other. Mother cross-petitioned, alleging father was in arrears in child support and to modify child support.

There was a great deal of back-and-forth, but ultimately, there were insinuations that the mother was abusing drugs, including her oldest son's own medication for ADHD. Additionally, the children were frequently sent to school without lunch money, and both were having behavioral problems. Father alleged the mother was not properly caring for the children any longer.

Drug tests revealed mother tested positive for drugs, but she was unable to produce a prescription for the medications she tested positive.

School officials testified while father was involved, attended field trips and school parties and showed up regularly for parent-teacher conferences, mother did not. When father learned of problems with the children's lunch money, he immediately filled their account and repaid the school staffers who had loaned the children money for food.

Other witnesses testified the mother no longer cleaned her home or the children, and frequently stayed in her pajamas all day, often abusing drugs. Mother denied these allegations, and other witnesses testified on her behalf.

Ultimately, the court chose to modify custody, awarding father primary custody. However, the court did find father had been in arrears $18,000, and that amount was to be deducted from the monthly child support payments mother was now required to pay until it was caught up.

Mother appealed, alleging violation of due process rights, but the appeals court affirmed. The mother, who represented herself in these proceedings, did not properly preserve all issues for appeal, but even if she had, the court ruled, the court did not err in its conclusion.

Additional Resources:

Smith v. Smith, April 3, 2015, Alabama Court of Civil Appeals

About the Author

Steven D. Eversole

J.D., Samford University's Cumberland School of Law, Birmingham, Alabama B.A., University of Alabama, Tuscaloosa, Alabama


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