Rel: August 7, 2026
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, 2026
CL-2026-0020
Shannon Lavon Yancey
v.
Jaime Nicole Wheeler
Appeal from Morgan Circuit Court
(DR-18-259.02)
FRIDY, Judge.
Shannon Lavon Yancey ("the father") appeals from a custodymodification judgment of the Morgan Circuit Court ("the trial court")
awarding Jaime Nicole Wheeler ("the mother") sole physical custody of
the parties' minor child, A.Y. ("the child"), after determining that the
CL-2026-0020
best-interest-of-the-child standard governed the mother's custodymodification petition. For the reasons set forth herein, we reverse the
judgment and remand the cause.
Background
The parties were never married. On November 21, 2019, the trial
court entered a judgment ("the settlement judgment") adjudicating the
father as the legal and biological father of the child, who was born in
2017. In the settlement judgment, the trial court ratified and
incorporated a settlement agreement into which the parties had entered
("the settlement agreement"). In the settlement agreement, the parties
agreed that they would share joint legal custody of the child, with the
father being awarded sole physical custody. The settlement judgment
awarded the mother visitation with the child during the first and third
weeks of each month from Sunday at 9:00 a.m. until the following Friday
at 6:00 p.m. It further provided for the mother's visitation with the child
during designated holidays and special events.
On October 4, 2023, the mother commenced the present action by
filing a petition to modify the settlement judgment and to hold the father
in contempt. She alleged that a material change in circumstances had
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occurred since the entry of the settlement judgment that warranted a
modification of custody. Specifically, she alleged that the child was
unsafe in the father's home because the father consumed alcohol
"heavily," maintained an unkempt residence, permitted firearms to
remain accessible to the child, and otherwise failed to provide a safe home
environment. She further alleged that the child no longer felt safe in the
father's home, that the father had failed to comply with the settlement
judgment, and that awarding her sole physical custody would materially
promote the child's welfare and best interests. In her contempt petition,
the mother alleged that the father had violated the settlement judgment
by continuing to consume alcohol while the child was present, by allowing
his significant other to spend the night while the child was present, and
by attempting to prevent the mother from picking up the child from
school. The father filed an answer denying the allegations in the mother's
petition.
On February 28, 2024, the father moved for leave to amend his
pleadings to assert a counterclaim, and the trial court granted that
motion the same day. In his amended answer, the father denied the
allegations in the mother's petition and asserted that no material change
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in circumstances had occurred since the entry of the settlement
judgment. In his counterclaim, he likewise alleged that no material
change in circumstances had occurred, requested that the trial court
deny the mother's requested relief, sought an award of attorney's fees,
and requested such other relief as the trial court deemed appropriate. On
March 14, 2024, the mother replied to the counterclaim, denying its
material allegations and demanding strict proof thereof.
On April 22, 2024, the father moved for leave to amend his
counterclaim and, that same day, filed an amended counterclaim and
petition for a rule nisi. In addition to reasserting the allegations and
requests for relief contained in his original counterclaim, the father
alleged that changes in circumstances since the entry of the settlement
judgment warranted modification of that judgment by reducing the
mother's visitation time. The father further alleged that the mother had
improperly exercised her decision-making authority regarding the child's
medical care by enrolling the child in counseling and mental-health
treatment without involving him, authorizing medication that he
believed was contrary to the child's best interests, refusing to provide him
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with the child's medication, and causing the child to be medicated or
overmedicated.
The father also sought to have the mother held in contempt. He
alleged that the mother had communicated to the child her disrespect for
the father's rules and instructions, had discussed the parties' legal
proceedings with the child, and had failed to notify him of the child's
counseling and medical appointments, all in violation of the parenting
provisions incorporated into the settlement judgment. He further alleged
that the child exhibited increased behavioral problems at school following
periods of custody with the mother. Based on those allegations, the father
requested that the trial court modify the mother's visitation by requiring
her weekend visitation periods to end on Sunday evening, award him
final decision-making authority regarding the child's medical care, hold
the mother in contempt, award him attorney's fees, and grant such other
relief as the trial court deemed appropriate.
Subsequent to the parties' additional amendments to their
pleadings and further allegations of contempt, the trial court conducted
a trial on January 7 and 8, 2025. The mother testified that she and the
father had begun living together in 2016 and had been residing together
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when the child was born in 2017. She testified that they had lived in a
single-wide mobile home located in front of the double-wide mobile home
in which the father resided at the time of the trial. She further testified
that her two older children from a previous marriage ("the older
children") had also resided with them during that time.
The mother testified that, when the parties entered into the
settlement agreement, they were no longer residing together and that
she was then residing in Boaz. She testified that, after the settlement
judgment had been entered, she moved back in with the father in July
2021 and lived with him again for a couple of years. According to the
mother, the older children also moved into the father's residence at that
time.
The father testified that he had lived in his current residence in
Union Grove for approximately three years and had lived in the adjacent
single-wide mobile home for more than ten years before that. He testified
that, before the parties had entered into the settlement agreement, he,
the mother, the child, and the older children had lived together in the
single-wide mobile home. According to the father, after the parties had
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entered into the settlement agreement, they and all the children resumed
living together.
The mother testified that, after she and the father had resumed
their relationship in July 2021, the relationship initially was "fine" and
felt like a "honeymoon period." She testified that, as time went on, "the
drinking got heavier for both of [them]." According to the mother, she
experienced what she described as mental and verbal abuse until early
2023, when the relationship became physically abusive. She further
testified that the father frequently screamed at her and the children and
that, in early 2023, she began standing up for herself and the children.
The mother testified that she left the father's residence at the end
of June 2023 and never returned to live there. She testified that she and
the children stayed with a friend for approximately one month while she
looked for another place to live. According to the mother, she entered into
a one-year lease for a residence in Huntsville beginning August 1, 2023.
She testified that, after that lease had expired, in August 2024, she
moved into her mother's house, where she was residing at the time of the
trial. She testified that she had not been inside the father's residence
since she left in June 2023.
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The father testified that he and the mother had argued during their
relationship and described some of those arguments as heated. He
acknowledged that he had raised his voice to the mother and that, since
2019, he had also raised his voice to the child and the older children. He
testified that it was possible that he had yelled at them while intoxicated,
although he was not sure. He denied ever physically abusing the mother
or the child and denied hitting the child.
The father acknowledged that he had had a drinking problem but
testified that he no longer had one. He testified that he had stopped
drinking completely approximately two or three months before the trial.
Before that, he testified, he had reduced his alcohol consumption to once
or twice a week and drank only when the child was not in his care. He
testified that he maintained his sobriety by staying busy and that he was
not attending Alcoholics Anonymous meetings or any similar program.
He also testified that he was not experiencing any physical symptoms
from no longer drinking alcohol.
The mother testified that, "typically on numerous occasions," the
child was "absolutely filthy" when she picked him up from the father's
house. She said that his skin and clothing were dirty and that there had
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been occasions when she could rub dirt from the child's neck because he
was "so coated in it." She further testified that the child appeared "like
he ha[d]n't bathed for days" when he returned to her care and that his
clothing often was too small. She testified that she wanted the child to
have "a stable and safe home" and "a place where he can grow up to be a
decent human being." She also testified that the older children lived with
her full time. At the time of the trial, she was residing in her mother's
house, was not on the mortgage encumbering her mother's house, and did
not have a lease for the house.
The father disputed the mother's testimony regarding the child's
condition. He testified that the child bathed daily and denied that the
child returned to the mother dirty after being in his care. Although he
acknowledged that some of the child's clothes had become too small
because the child had outgrown them, he testified that he had purchased
new clothing and that the child had plenty of clothes that fit.
On October 29, 2025, the trial court entered a final judgment
resolving the parties' claims. The trial court found, in pertinent part:
"The parties['] original agreement was that the parties would
share joint legal custody with the [f]ather having sole physical
custody. However, the parties['] actual arrangement was
essentially 50/50 custody. As the parties were living as if they
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each had joint physical custody, then [the trial court] finds
that they were acting under a joint legal and joint physical
custody arrangement. Considering this, [the trial court] finds
that the appropriate standard for modification is the best
interest of the child standard."
Applying that standard, the trial court awarded the mother sole physical
custody of the child while continuing the parties' joint legal custody. The
trial court stated that the parties were encouraged to exercise liberal
visitation and provided that, if they could not reach an agreement
regarding visitation, they were to follow the Morgan County Standard
Visitation Schedule. The trial court also awarded the mother final
decision-making authority regarding the child's educational needs and
healthcare decisions. The trial court denied the parties' remaining
requests for relief.
The father filed a motion to alter, amend, or vacate the modification
judgment; a motion for a new trial or, alternatively, to reopen the
evidence; and a motion to stay enforcement of the judgment. After the
trial court denied those motions, the father filed a timely notice of appeal.
Standard of Review
This court has held that whether a trial court applied the proper
custody-modification standard presents a question of law; accordingly,
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our review is de novo. C.T. v. E.R., 373 So. 3d 840, 842 (Ala. Civ. App.
2022) (quoting Wood v. Wood, 29 So. 3d 908, 911 (Ala. Civ. App. 2009)).
Analysis
The father contends that the trial court erred by modifying custody
by applying the best-interest standard set forth in Ex parte Couch, 521
So. 2d 987 (Ala. 1988), rather than the heightened standard established
in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). He contends that the
settlement judgment expressly awarded him sole physical custody of the
child and granted the mother visitation rights. According to the father,
because the settlement judgment constituted a prior judicial
determination awarding him sole physical custody, the mother was
required to satisfy the McLendon standard before custody could be
modified.
"The determination whether the McLendon standard or the 'best
interests of the child' standard set forth in Couch applies turns on
whether there has been a previous custody determination as between the
two parents." Whitehead v. Whitehead, 214 So. 3d 367, 370 (Ala. Civ.
App. 2016). When there has been no prior judicial custody determination
favoring either parent, or when a prior judgment awards the parties joint
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legal custody and joint physical custody without preferring one parent,
the applicable standard in a subsequent custody-modification action is
the best-interest-of-the-child standard. Id. Conversely, when a prior
custody judgment favors one parent by awarding that parent sole
physical custody, the McLendon standard governs any subsequent
custody-modification action. Id.
Under the best-interest standard, a party seeking a custody
modification must show that a material change in circumstances has
occurred since the entry of the prior judgment and that modifying custody
in the manner requested is in the child's best interests. D.M.J. v. D.N.J.,
106 So. 3d 393, 396 (Ala. Civ. App. 2012). Under the McLendon standard,
the noncustodial parent seeking a custody modification must establish
that he or she is a fit custodian, that a material change affecting the
child's welfare has occurred, and that the benefits of the proposed
modification will more than offset the disruption caused by uprooting the
child. Gordon v. Gordon, 231 So. 3d 347, 353 (Ala. Civ. App. 2017).
Here, the settlement judgment expressly awarded the father sole
physical custody of the child, which normally would mean that any
modification of physical custody would implicate the McLendon
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standard. The trial court, nevertheless, concluded that the parties'
"actual arrangement was essentially 50/50 custody," that, since the entry
of the settlement judgment, they had been "living as if they each had joint
physical custody," and that they were therefore "acting under a joint legal
and joint physical custody arrangement." Based on those findings, the
trial court determined that the best-interest standard, rather than the
McLendon standard, governed the mother's petition.
We conclude that the parties' actual custody arrangement after the
entry of the settlement judgment did not alter the applicable modification
standard. This court has explained that, when a prior judicial custody
determination favors one parent, " 'it makes no difference that the parties
... had worked out an informal arrangement to care for the child[ren]' " in
determining the standard governing a custody-modification proceeding.
Lawley v. Byrd, 689 So. 2d 191, 193 (Ala. Civ. App. 1997) (quoting Ex
parte Bryowsky, 676 So. 2d 1322, 1325 (Ala. 1996)). Likewise, our
supreme court has explained that, although the parties' informal
arrangement and its effect on the child are factors to consider in
determining whether a custody modification would materially promote
the child's welfare, the arrangement itself does not constitute a waiver
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by a preferred party under a prior custody judgment of his or her right to
that preference. Ex parte Bryowsky, 676 So. 2d at 1325. Thus, although
the parties' actual custody arrangement could be considered in
determining whether the mother satisfied the McLendon standard, it did
not change the standard governing her custody-modification petition.
The mother, nevertheless, argues in her responsive brief that the
rationale underlying the McLendon standard is inapplicable because, she
says, the parties were actually exercising joint physical custody.
Therefore, she argues, awarding her sole physical custody would not
"uproot" the child from an established custodial arrangement. Mother's
brief at 76. Specifically, she asserts that the child spent nearly equal
amounts of time with each parent and that the visitation schedule
reflected "essentially ... a 50/50 joint custody arrangement." Id. at 48. We
disagree with the mother's characterization of the evidence. The
settlement judgment awarded the mother visitation from Sunday at 9:00
a.m. until Friday at 6:00 p.m. on the first and third weeks of each month.
That schedule afforded the mother approximately five and a half days of
parenting time during each of those weeks, or approximately eleven days
each month. Thus, contrary to the mother's repeated assertions, the
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settlement judgment did not provide the parties with nearly equal
parenting time. Instead, the mother exercised custody of the child for
approximately one-third of the child's time under the settlement
judgment. Accordingly, the factual premise underlying her argument --that the custody arrangement itself reflected a joint-physical-custody
schedule -- is unsupported by the terms of the settlement judgment.
The mother relies heavily on New v. McCullar, 955 So. 2d 431 (Ala.
Civ. App. 2006) (per Murdock, J., with one judge concurring and three
judges concurring in the result), arguing that, as in that case, the
substance of the parties' custody arrangement should control over the
labels used in the judgment. Her reliance is misplaced. In New, the
divorce judgment expressly awarded the parties " 'joint legal and joint
physical custody' " and provided for the child in that case to reside with
the father in that case almost one-half of every month during the school
year, approximately one-half of each summer, and approximately onehalf of designated holiday periods. Id. at 435. The main opinion in New
concluded that the arrangement fit the statutory definition of joint
physical custody under § 30-3-151(3), Ala. Code 1975, because it assured
the child " 'frequent and substantial contact with each parent.' " Id.
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Although the judgment also referred to that child's "primary residence"
being with the mother in that case and described that father's custodial
periods as "visitation," the main opinion held that those provisions did
not contradict the judgment's express award of joint physical custody. Id.
at 435-36. To the extent that the divorce judgement was internally
inconsistent, the main opinion concluded that, when considered in its
entirety, the judgment created a joint-physical-custody arrangement. Id.
at 436.
Unlike in New, the settlement judgment in this case contains no
internal inconsistency requiring judicial interpretation. It unequivocally
awards the father sole physical custody while granting the mother
specified visitation. Nothing in the settlement judgment labels the
parties as joint physical custodians or otherwise creates conflicting
custody provisions. Further, the visitation schedule does not resemble
the arrangement in New. Whereas the father in New exercised custody
of his child nearly one-half of the time throughout the year, the mother's
visitation with the child in this case amounted to approximately onethird of the time each month. Consequently, New does not support the
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mother's contention that the settlement judgment should be construed as
creating a joint-physical-custody arrangement.
Similarly, the mother's reliance on Grantham v. Grantham-Potts,
369 So. 3d 672 (Ala. Civ. App. 2022), is unpersuasive. That case, like New,
also involved internally inconsistent language in a custody judgment.
There, the divorce judgment referred to joint physical custody but
awarded the father visitation only one weekend each month, seven days
during the summer, and alternating holidays. Id. at 674-75. This court
found that the evidence supported the conclusion that the parties "did
not actually engage in shared physical custody of [their] child but, rather,
that the mother [in that case] had sole physical custody of [their] child
with the father [in that case] exercising visitation." Id. at 679.
Accordingly, this court held that the McLendon standard applied because
the prior judgment, in substance, awarded the mother in that case sole
physical custody. Id. Here, unlike in Grantham, the settlement judgment
is not internally inconsistent. It expressly awards the father sole physical
custody and the mother visitation, and it provides custody and visitation
periods consistent with those expressed awards.
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The mother also contends that, because the parties actually
exercised what she characterizes as joint physical custody, the
designation of the father as the sole physical custodian should be
disregarded. That argument, however, is inconsistent with Bardolf v.
Bardolf, 271 So. 3d 821 (Ala. Civ. App. 2018). There, the father in that
case argued that, although the divorce judgment had awarded the mother
in that case sole physical custody, subsequent modification judgments
effectively created a joint-physical-custody arrangement because they
expanded his visitation until the parties shared equal parenting time on
an alternating weekly basis. Id. at 826. This court distinguished New,
explaining that, unlike the judgment in New, the divorce judgment in
Bardolf "directly and unequivocally granted physical custody to one
party." Id. at 827. Although the subsequent modification judgments in
that case enlarged that father's visitation periods until they equaled that
mother's custodial periods, the parties "did not choose to submit any
modification of physical custody to the trial court for approval." Id.
Therefore, because "the designation of the physical custodian ... had not
changed since the entry of the divorce judgment," this court held that the
trial court had correctly applied the McLendon standard. Id.
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Here, although the parties in this case may have shared parenting
time and otherwise conducted themselves as though they exercised joint
physical custody, the settlement judgment expressly awarded the father
sole physical custody, and the parties never obtained a judicial
modification of that custody designation. Thus, the parties' actual
exercise of parenting time did not alter the applicable custodymodification standard.
Similarly, the parties' decision to resume cohabitation after entry
of the settlement judgment did not alter the applicable custodymodification standard. In Rivera v. Sanchez, 297 So. 3d 1242 (Ala. Civ.
App. 2019), this court rejected the argument that divorced parents'
postdivorce cohabitation, which allegedly resulted in "a sharing of
parental responsibilities and a continuation of their lives as a united
family unit," altered the legal effect of the prior custody judgment. Id. at
1247. This court held that the trial court had correctly applied the
McLendon standard notwithstanding the parties' cohabitation. Id.
Although the parties in this case resumed cohabitation for a period and
shared parenting responsibilities, that arrangement did not alter the
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legal effect of the settlement judgment awarding the father sole physical
custody or change the applicable custody-modification standard.
Finally, the mother's argument that the child would not be
"uprooted" if custody were modified concerns whether she can ultimately
satisfy the heightened burden imposed by the McLendon standard, not
whether the McLendon standard applies. Having concluded that the trial
court applied the incorrect legal standard, we decline to reweigh the
evidence to determine whether the mother satisfied that standard. See
Rich v. Rich, 887 So. 2d 289, 302 (Ala. Civ. App. 2004) (plurality opinion)
(quoting Ex parte R.T.S., 771 So.2d 475, 477 (Ala. 2000)) (explaining that
" '[t]he trial court must be allowed to be the trial court; otherwise, we
(appellate court judges and justices) risk going beyond the familiar
surroundings of our appellate jurisdiction and into an area with which
we are unfamiliar and for which we are ill-suited -- factfinding' "). The
appropriate remedy is to remand the cause for the trial court to evaluate
the evidence under the proper standard. See id. at 302.
Conclusion
Based on the foregoing, we conclude that the trial court applied the
incorrect legal standard in modifying custody. The settlement judgment
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awarded the father sole physical custody of the child, and neither the
parties' informal custody arrangement nor their subsequent cohabitation
altered the legal effect of that judgment. Accordingly, the trial court
should have evaluated the mother's petition under the McLendon
standard. Because it instead applied the best-interest standard, the
modification judgment is due to be reversed and the cause remanded for
further proceedings consistent with this opinion.1
REVERSED AND REMANDED.
Moore, P.J., and Edwards, Hanson, and Bowden, JJ., concur.
1Because of our disposition of the father's argument that the trial
court applied the wrong standard in modifying custody, we pretermit
consideration of his other arguments on appeal.
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