Here’s what you should know if you’re engaged in a child custody action in Alabama.
- What are the Types of Child Custody in Alabama?
- Determining Child Custody in Alabama
- What is Alabama’s Best Interests of the Child Standard?
- What to Know About Parenting Plans
- How Do I Modify an Alabama Custody or Visitation Order?
- Alabama Child Custody FAQs
What are the Types of Child Custody in Alabama?
Before filing a custody case, you must determine if Alabama is your child’s “home state.” Alabama usually qualifies as your child’s home state if:
- Your child lives in Alabama and has lived in Alabama for the last six months in a row;
- Your child no longer lives in Alabama, but Alabama is the last state where your child lived for at least six months in a row; or
- Or, your child is less than six months old but has lived in Alabama since birth.
Alabama’s official state policy favors joint custody to ensure that minor children have frequent and continuing contact with their parents, especially when they are still younger. This assumption is based on parents who have shown the ability to act in their children’s best interest and encourage them to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage.
Joint custody does not mean equal custody. One parent may be awarded a great share of legal and physical custody, depending on the facts of the case.
Parents and the courts will have input on the optimal arrangement based on the child’s best interests.
Sole legal custody means one parent makes all the key decisions such as health, education, general welfare, and religion affecting the children, and it means that the children only live with one parent. This parent awarded custody is referred to as the “custodian,” and the other is considered the “non-custodial” parent.
Joint physical custody is referred to as shared parenting, which means parents share equal legal custody but not equal physical custody of their children. Both have an equal right and responsibility to make crucial decisions regarding health, education, general welfare and religion.
Sole physical custody means the child will reside with one parent, and the other may have visitation. With joint physical custody, the child lives with each parent for specific periods, ranging from a few days a week to perhaps months at a time.
Judges usually consider the option of joint custody in every case, but parents should not always assume that joint custody should be awarded. The court looks at several factors before reaching a fair and just decision.
Some county courts can mandate a minimum visitation schedule when both parents live in Alabama. When one of the parents resides out of state, setting a schedule can be more complicated. In these situations, you’ll usually see longer visitation periods scattered over the course of the year.
Visitation can be restricted or entirely denied if a child’s safety is at risk when visiting a parent. That might be the case if a parent has a history of domestic violence or child abuse, or an ongoing problem with alcohol or drug addiction.
Instead of denying visitation completely, courts often preferred to order supervised visitation. That means a third party will monitor the visit. The visit may take place at a facility run by a state-sanctioned agency.
Where issues exist, unsupervised visitation may still be possible with restrictions. For example, the court may require a bond from the visiting parent, denial of overnight visits, or ordering the parent to abstain from alcohol or drug use before and during the visitation.
Determining Child Custody in Alabama
Alabama courts relied heavily on the child’s best interests in determining custody. To help guide judges, several factors are considered. Some of these include:
- The level of agreement between the parents
- The age and sex of the child
- The child’s emotional, material, and educational needs and each parent’s ability to meet those needs
- Each parent’s home environment
- Each parent’s age, stability, and mental and physical health
- The child’s relationship with each parent
- The nature of the child’s relationship with any siblings
- How the child might be impacted based on any change to the current custody arrangement
- Reports and recommendations of experts, evaluators, or guardian ad litems to the case
- Any other factors pertinent to custody
A court can also consider a child’s preference, but only if the court finds the child is of sufficient age and maturity. As a general rule, the older the child, the more weight a judge will give to that child’s wishes.
Another important thing to note is that custody is gender-neutral. The court does not take into account whether a child should be placed with a mother or a father in most cases. Child custody is decided based on the best interests of the children.
Alabama does have custody rules that specifically address abandonment. A provision in Alabama’s custody law states that if the wife has abandoned the husband, the husband will have custody of the child after the child reaches the age of seven, as long as he’s suitable for that role.
Courts may also appoint an attorney to represent the child’s best interests. A guardian ad litem, also called a GAL, is the legal name for the children’s attorney. A GAL does not represent the mother or the father in a child custody case. The GAL’s duty is to the minor children. The GAL reviews the evidence and interviews the parties and the minor children, then forms a professional opinion of what is in the best interests of the minor children. This recommendation is then given to the court as part of the decision process. Many judges rely heavily on the GAL’s opinion heavily in making any child custody determination.
How does domestic violence impact a court ruling on custody?
Alabama law also states that if a judge finds a parent has committed domestic or family violence, there’s a presumption that giving that parent any form of custody wouldn’t be in the child’s best interest. The judge must take into account:
- What impact, if any, the domestic violence had on the child
- The safety and well-being of the child and of the parent who is the victim of family or domestic violence
- The abuser’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault, to another person.
Suppose a parent is absent or relocates because of an act of domestic or family violence by the other parent. In that case, the judge cannot use this against the parent in deciding custody or visitation.
Can a judge terminate the abuser’s parental rights if the abuser is convicted of a sex crime?
The judge will terminate parental rights if the abuser is convicted of rape in the first degree,
sodomy in the first degree, or incest.
What is Alabama’s Best Interests of the Child Standard?
The best interests standard means that all decisions regarding custody in Alabama are made with the child’s best interests placed above all other factors. Courts place less emphasis on the parent’s desires, especially if an agreement conflicts with the best interests of the child. Courts will use the statutory factors above to guide them to this decision.
Read More: Divorce Laws in Alabama
What to Know About Parenting Plans
Parenting plans are detailed instructions about each child’s physical and legal custody. Parents are encouraged to work out details on their own as part of their divorce, but when they aren’t able to do this, the court will step in and create an agreement instead.
Sometimes, parents can hire a mediator or a family law attorney to help them draft a plan. At a minimum, a well-crafted parenting plan should include the following:
- Physical custody details, including the number of overnight visits for each parent.
- Legal custody and how those responsibilities are allocated between parents.
- The manner of exchanging children, including when, where, and time of day
- Transporting children for visitation and other necessary movements
- Holiday and school break schedules
- Vacation and travel approval and advance notifications
- How will a child communicate with both parents
- How is communication between parents handled?
- Contact with other family members and friends
- How are tuition, medical costs, school activities, hobbies, and recreational activities expenses handled?
- Child support and alimony payment amounts and recourse if a parent falls behind.
- Access to records and information
- Children’s use of technology and online activities
- How to address child discipline and mental health issues
- Guidelines when a new partner is involved
- Grooming and dress guidelines (extreme haircuts, make-up, etc.)
- Drinking or drug use in the presence of the children
As long as the parenting plan meets the child’s best interests, courts will often approve a plan drafted by the parents and presented to the court for review.
Read More: A Guide to Uncontested Divorce in Alabama
How Do I Modify an Alabama Custody or Visitation Order?
Custody agreements are legal documents signed by a judge and filed with the Clerk of the Court. They must be followed at all times. Neither party can file contempt motions with the court to seek enforcement when they are not.
However, situations do change, and when a custody order does not meet the child’s best interests any longer, a parent can file a “Petition for Modification.” For a judge to approve a modification, there must be a material change in circumstances. This may include the custodial parent wanting to move out of state, health issues affecting either parent, a job loss or job change requiring a schedule change, the presence of domestic violence, or other similar events.
You will usually need to go to the court that issued the original order. If you move to a new county, you may be able to move your case to the new county if the other parent and your children have moved to that new county, too.
If you have moved to a new state or if both parents and the child have moved away from the original state, you can ask the court to change the jurisdiction to the new state that you and your child are in.
Modifications can be somewhat complex, and it’s often a good idea to consult an attorney to have the best chance of the changes being approved.
Alabama Child Custody FAQs
Can grandparents get custody or visitation in Alabama?
Grandparents can petition for access and be awarded visitation privileges as long as the Court considers such access in the best interests of the children and one of the following conditions exist:
- One or both parents of the child are no longer living.
- The marriage of the parents of the child has been legally dissolved.
- The child was born out of wedlock, and the petitioner is the mother’s parent (maternal grandparent of the child), or the child was born out of wedlock, and the petitioner is the father’s parent (paternal grandparent of the child), and the father’s paternity has been legally established
- An action to terminate the parental rights of one or both parents has been filed or the parental rights of a parent have already been terminated by court order.
- If the child is adopted, an eligible grandparent may still be able to seek visitation only if the adoptive parent is the child’s step-parent, grandparent, sibling, half-sibling, aunt or uncle.
If the child is living with both biological parents who are still married to each other, the parents can use their parental authority to prohibit a relationship between the child and the grandparent.
Grandparents can petition for visitation only once during any two-year period unless they can prove there is a good cause to file more than once during that period.
How is relocation handled?
Alabama has created a statute with the presumption that, in most cases, a distant relocation is not in the children’s best interest. Under the law, a custodial parent who is contemplating moving out of the immediate area must notify the non-custodial parent. The non-custodial parent has the right to object to the move and request a hearing to consider the issue before the court.
If the move is not geographically significant, this is usually not a problem as long as proper notice is given. However, when the relocation is more than 60 miles, the relocating parent must notify the other at least 45 days ahead of time. The non-relocating parent has 30 days to file an objection with the court.
For temporary trips out of state, you should not have a problem if taking the child out of state does not interfere with the other parent’s custody or visitation rights or if the other parent gives written permission.
What is the Uniform Child Custody Jurisdiction and Enforcement Act?
The state has adopted the Uniform Child Custody Jurisdiction and Enforcement Act for those moving to Alabama. This agreement means that each state must honor and enforce child custody determinations made by courts in other states. For example, a valid custody order issued by an Oklahoma court can be enforced by an Alabama family judge with no need to obtain an entirely new custody agreement.