Sometimes after custody is awarded circumstances with the parents change. Maybe you don’t have custody of your child, but you want to have custody or at least joint custody with the other parent. No matter what the circumstance, if you want to change the legal status of your child’s custody you must file a Petition to Modify Custody. This serves as a request to the court to hear why you think the child’s custody arrangements should be altered. However, if it is not by agreement, then there is a heavy burden of proof on your part to convince the court that a change in custody is warranted.
Our local family law attorneys require something called a retainer to file a Petition to Modify Custody. If you and your ex are in agreement on the changes, then we can do an Amended Agreement to change the custody previously ordered by agreement of the parties. Such an uncontested petition usually does not require a hearing and can be done fairly quickly and easily. If you and your ex are not in agreement and you want to alter custody, then we require a retainer.
A retainer is something that is paid to the law firm and placed in a special account called a Trust Account. The divorce attorney then works on your case and bills hourly from this retainer. For example, an attorney might work at $250.00 per hour. If you paid a retainer of $1000 up front then after the attorney has worked four hours on your case, the retainer has been exhausted. When the retainer is exhausted then you might have to refill it. We generally require a retainer up front based on the expectation of work to be done. The retainers for a Petition to Modify can be anywhere from $1500 to $3000 or more, depending on the complexity of your case and the work involved. If your case is near one of our office locations, then the retainer will be less than if our attorneys has to drive a long distance to handle your case. We currently have custody modification attorneys in Decatur, Anniston, Huntsville, Birmingham, Alabaster, Montgomery, and Prattville. Call us today for a free phone consult with the attorney to see how much the retainer will be for a Petition to Modify.
To be successful in your contested Petition to Modify Custody, you must show to the Court certain things. In Alabama, the courts use something commonly called the McLendon Standard. To satisfy the McLendon Standard, the parent seeking custody (aka the non-custodial parent) must demonstrate the following:
- That a material change in circumstances has occurred since the initial or previous judgment regarding custody in the case;
- That the child’s best interest will be promoted materially by a change in custody; and
- That the benefits of the custody change will more than balance the intrinsic disruptive effects which may result from a change in custody.
When custody is originally awarded, the court uses a “best interest of the child” standard. However, when the non-custodial parent requests custody, the court uses the more stringent McLendon standard in making their determination. This is because courts are generally hesitant to change or modify a custody arrangement out of concern for the inherent disruptive effects it may have on the child. Therefore, if you are the non-custodial parent you must not only show that the child will be better off in your custody, but also that he/she will be so much better off that it overcomes the concerns of the disruptions in the child’s life that invariably occur from a custody change.
A Petition to Modify Custody in Alabama should be filed in the county where the original custody case was decided. Thus, if the original case was decided by the Domestic Relations Division of the Circuit Court of Jefferson County, you would typically file the Petition to Modify Custody in Jefferson County. Your petition should include your allegations or reasons why you are petitioning the court for a change in custody. Then the Petition should be served to the child’s custodial parent. This can be done by the Sheriff’s office, through your attorney, or through a process server. After the other parent has been served, they will have thirty days to respond to your Petition.
The discovery phase is next, which is where both parties gather evidence to support their case. This can involve gathering documents, taking depositions, and interviewing potential witnesses. Many judges will require couples attempt mediation before moving forward with trial. However, since many custodial parents oppose changes in custody, mediation may prove fruitless in which case the dispute will go to trial.
Some factors a court will look at when considering a custody modification are: the child’s health, the child’s needs, the nature and relationship of the parties to the people around them, the respective home environments offered by the parties, the age of the parties, the mental and financial stability of the parties, the interpersonal relationships between the child and his/her parents, whether one parent has interfered with the child’s relationship with the other parent, and the wishes of the child. These are some of the biggest questions a court will consider, but it is not an exhaustive list. The court may consider any evidence it deems relevant to the case.
For custody modifications, attorneys will usually charge a retainer fee. A retainer fee is money paid in advance for services that will be rendered. If you want a retainer quote, then call and speak with our divorce attorney today and they can tell you how much your retainer will be. If you need a custody modification in Huntsville, Anniston, Montgomery, Prattville, Birmingham, Alabaster, Decatur, Gardendale, Helena, Calera, Clanton, Millbrook, Jasper, Cullman, Athens, Tuscaloosa, Bessemer, Trussville, Hoover, Chelsea, Pelham, Leeds, Moody, Talladega, Gadsden, or anywhere else in Central or North Alabama, then call us today and we can help.
Attorney Steven A. Harris regularly blogs in the areas of family law, bankruptcy, and real estate closings on this website. He is always available in any of the firm’s offices or by phone anytime for a consultation. Mr. Harris tries to provide informative information to the public in easily digestible formats. Hopefully you enjoyed this article and feel free to supply any feedback. We appreciate our readers and love to hear from you!