In RE THE MARRIAGE OF McLOREN

In this matter Kirk H. McLoren (the father) appeals a modification order by which Nancy M. McLoren (the mother) was granted joint legal custody of their children, Heather and Michael. As we shall explain, the parent who requests a change in custody, whether legal or physical, must establish that the modification is in the best interests of the child based upon a change in circumstances. In the present case, we find an abuse of the trial court's discretion in modifying legal custody since the mother failed to produce any evidence of the requisite change in circumstances. Accordingly, we reverse.

Nancy and Kirk McLoren were married October 17, 1976, and dissolution of their marriage was entered October 16, 1979. The marriage produced two children, Heather, born August 12, 1977, and Michael, born December 6, 1979.

The record reveals a relationship perhaps stormier after the dissolution than before. The mother was originally awarded physical custody of both children; and the father initially had little contact partly because of her family's hostility toward him. This hostility culminated on February 21, 1981, when the children's maternal grandmother shot and…