The appeals court quoted in turn: Davis v Blackstock (Ala. Civ. Appl. 2007), Morgan v Morgan (Ala. Civ. Appl. 2007), and Watters v Watters (Ala. Civ. Appl. 2005), which shows Alabama law provides the only way for a trial court to modify a shared custody agreement, there must be evidence of a material change of circumstances between the parties since the prior legal determination that negatively affects the children. If none, the trial court should not modify custody. The appellant court said, "... neither party has demonstrated a material change of circumstances affecting the welfare and best interest of the children in this case. However, because the mother did not argue that the father had not shown a material change of circumstances, we cannot reverse the trial court's custody judgment on that basis. On remand, the trial court will be free to consider, based on the principles stated in this opinion, whether the joint-custody arrangement should be modified and, if so, how it should be modified." The conclusion said, “Based on our review of the record, the trial court lacked a compelling reason to separate the siblings..." We therefore reverse the judgment insofar as it makes that custody award, and remand the cause for proceedings consistent with this opinion. The appellant court upheld the trial court judgment regarding other issues.
17 July 09 - Alabama Law: Compelling Reason Required to Separate Siblings - The Alabama Civil Court of Appeals wrote an interesting and detailed opinion about previous legal standards Alabama courts have used to decide whether or not to separating siblings.
The record shows the older daughter - a fifth grader - was doing well, but the younger daughter - a third grader has juvenile rheumatoid arthritis, which has affected her eyes. She is legally blind. However, it appears both parents properly care for and address her needs. Also, there was testimony the parents did not communicate very well, however there was no evidence that had negatively affected the children.
Because the parents shared joint custody, the "best interest" standard, and not the standard set out in Ex parte McLendon, applies to the modification petition. While the “best interest” standard applies, the parents were required to prove that there had been a material change in circumstances affecting the welfare and best interest of the children. (The burden to establish a material change of circumstances is upon the petitioner.)