E.K.C. v. D.L.G.

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).
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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).

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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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CL-2025-0231

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.

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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.

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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)]."

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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

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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.
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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).

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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

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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.

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