Custody Even if It’s My Fault in Divorce?
Fault-based divorces affect the outcome of the divorce in several ways. They may make alimony more likely or alter property division. Only rarely are they a major factor in child custody. Generally, you can get custody even if the divorce was your fault. However, your actions before and after could affect whether you receive joint custody or visitation.
If you face a fault-based divorce, you want an Alabama divorce lawyer on your side. Having an advocate to guide you through the process protects your legal rights. Your lawyer can fight for a fair settlement and custody orders, regardless of what happened to end your marriage or what your spouse alleges against you.
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Using Fault as Grounds for Divorce Generally Does Not Affect Child Custody
In Alabama, individuals can file for divorce on either no-fault or fault grounds.
There are two reasons for a no-fault divorce under Alabama law:
- Irretrievable breakdown of the marriage
A no-fault divorce only requires one partner to make a claim. Pursuing a divorce on fault grounds requires proving the allegations are true.
Some examples of fault grounds in Alabama include:
- Drug or alcohol addiction
- A physically or mentally incapacitated spouse
- Imprisonment for a serious crime
There are pros and cons to filing a fault-based divorce. Your attorney can offer advice and guidance on this topic. If your spouse accused you of misbehavior, an attorney can protect your rights throughout the process.
Your spouse may convince the court of their concerns about your ability to care for your child if the grounds for divorce include:
Seeking Custody After Adultery or Addiction
Many fault divorces involve allegations of adultery. Adultery is unlikely to affect the outcome of your child custody dispute unless your child witnessed the affair or other issues hurt your child’s emotional well-being.
If your spouse claims you have a drug or alcohol addiction, proving that you completed treatment and have a plan to remain clean and sober could help your custody case. Working with a lawyer familiar with these cases can help you present evidence that shows you can provide for your child’s physical, emotional, and financial needs.
Alabama Almost Always Awards Joint Legal and Physical Custody
Under Alabama law, judges must consider joint custody whenever possible. If the fault grounds in your divorce case do not directly endanger your child, you will likely receive a say in decision-making and regular visitation with your child. Sole legal or physical custody is rare unless the parent poses a significant risk to the child.
You shouldn’t have to worry about whether you will see your child regularly or play a role in their life moving forward. Depending on the circumstances, you could also receive primary physical custody of your child regardless of fault in your divorce.
While we generally discuss custody lumped into one category, the judge will rule on three factors related to custody:
Legal custody determines who makes decisions on the child’s behalf, e.g., where they go to school, what religion they follow, and what medical care they need. Alabama generally supports joint legal custody, with both parents having input on all major decisions.
Physical custody refers to where the child lives and which parent cares for the child each day. This can vary based on the visitation schedule, but the judge will assign one parent as the primary custodial parent.
The child will reside in the primary custodial parent’s home more days of the year and go to school based on their zone. The primary custodial parent will also likely receive child support to help cover the costs of caring for the child more, even when the parenting plan makes the days almost equal.
Alabama law supports ample time spent with each parent, which typically occurs through regular visitation. Most parents see their child at least once a week and often more frequently. They may also split school breaks, holidays, and other special days like the child’s birthday.
The judge sets the visitation schedule based on who has primary physical custody, each parent’s relationship with the child, the age and gender of the child, each parent’s job, childcare concerns, and other factors.
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What Factors Do Judges Consider When Deciding Custody?
Alabama law clearly outlines what judges must consider when determining child custody. If both parents want legal custody of the child, each side presents evidence to document why they believe they are the best choice as the primary custodial parent. They may also provide evidence why they believe their spouse is not the best option.
The judge uses this information along with the questions posed by Alabama law to determine which parent will best meet the child’s interests. In many cases, neither parent did anything to hurt their child, and either parent can provide a positive environment.
When this occurs, Alabama law requires the judge to consider other factors, such as:
- The child’s current relationship with each parent
- The child’s ability to continue their school and activities
- The environment each parent provides for the child
- The age and gender of the child
- Each parent’s mental, emotional, and physical health
- Each parent’s financial ability to provide for the child
- Any agreement between the parents on custody or visitation
- Expert opinions or assessments from social workers, guidance counselors, and others
- Any history of abuse or violence, especially in front of the child
Alabama law also allows judges to consider the child’s wishes under certain circumstances. However, the law does not provide an age when the child may “choose” who to live with. If the judge believes the child is mature enough to decide, they will consider it as one factor in their decision.
Your Attorney Can Build a Case to Fight for Custody on Your Behalf
Your attorney will help you fight for your preferred outcomes in your divorce, including getting favorable property division, keeping the assets you desire most, and pursuing primary physical custody of your child.
Early in your case, you and your attorney can discuss your options based on the contested topics and determine your goals.
Concerning custody, these may include:
- Joint legal custody or sole guardianship
- Primary physical custody
- Ample visitation based on your preferred schedule
An attorney well-versed in Alabama custody disputes knows how to support their client’s best interests and gather evidence to pursue their preferred outcomes. In most divorce cases, this is independent of any evidence used to prove or defend against fault grounds.
Evidence That Supports Legal and Physical Custody
Some evidence supporting legal and physical custody may include:
- Documentation of your involvement in the child’s life, such as coaching their teams, serving as a scout leader, and other activities
- Assessments from guidance counselors and others of the child’s success in school and activities while under your care
- Paperwork that documents your income, job, and length of employment
- Proof of your ability to keep the child in their current school and community
- Any available evidence of concerns of abuse or neglect with the other parent
An Attorney Can Protect Your Rights to Access and Participation
As a parent, you have a right to share in the decision-making process and actively participate in your child’s life. Alabama law requires judges to award joint legal custody and regular visitation when possible and safe for the child. Your lawyer will fight to protect these rights and work toward getting an agreement or court order that works best for you and your child.
Reaching a Custody Agreement Allows You to Avoid Trial
Many people think of divorce on fault grounds as a combative, drama-filled, expensive courtroom drama. The truth is that most divorces never go to trial. Instead, the parties reach an agreement outside of court, either on their own or through a mediator.
The easiest way to avoid a trial is to work diligently to agree with your spouse about:
- Property division
- Splitting debts
- What to do with the family home
- Child custody and visitation
Even if two spouses go to trial about the fault grounds or custody, the judge only has to hear the relevant topics. For example, there is no need to present evidence about property division in court if the only argument is about child custody.
Understanding the Divorce Process
In a divorce, spouses must navigate several steps to reach an agreement and have a court approve their orders (or go to trial and receive orders from the court).
These steps include:
- File the initial complaint and have divorce paperwork served (present the other party with a copy)
- Receive a response from the other party, generally within 30 days
- Go through discovery, when each side reveals documents and other evidence to determine the facts of the case and support their arguments
- Pretrial motions, including requests for temporary custody orders
- Negotiations for a settlement on all key factors
- Mediation (if necessary)
- Get the case on the judge’s docket if they cannot agree otherwise
- Receive a divorce decree, orders, and a parenting plan set by the court
Many people do not need to navigate every step. Their divorce lawyer can help them reach a fair and equitable settlement after the initial complaint and response, allowing them to get the judge’s approval quickly and avoiding the stress and frustration of going to court.
What Do I Need to Know About Temporary Orders?
While Alabama only requires 30 days between filing for divorce and issuing a divorce decree, moving this quickly is unlikely. It requires an uncontested, no-fault divorce before filing. Most divorces take longer.
Because the divorce process can last months or even a year or more, the court often issues temporary orders to address custody, support, and other issues during this time.
Temporary orders generally result from a motion one or both parents file to determine:
- Where the child stays
- Who makes decisions about the child’s care
- When the child sees the other parent
- How much one parent needs to pay the other in support
Setting and Following Temporary Orders
The judge reviews the facts each side presents and rules on legal and physical custody while the divorce is underway. These temporary orders begin on the day the judge orders them and end with the final decree and plan.
While temporary orders are not permanent, and the divorce process may tweak or even overhaul them, they are important. Alabama custody laws stress how imperative it is to provide children with stability. Judges like to find a plan that supports the child’s best interests and stick with it.
The parent named the primary physical custodian of the child in the temporary orders may be more likely to have primary physical custody of the child in the final orders as well. This is one reason your attorney will want to go to court with a strong argument to show you offer the care, support, and resources your child needs during this difficult time for your family.
Contact a Divorce Attorney Today
Many people think divorce represents a failure on their part. Too often, though, that’s not the case. Divorce is a way to empower you and free you from an unhappy situation.
Alabama divorce lawyers near you can guide you through this process, protecting your rights while you stand accused of fault in your divorce. Whatever the grounds of your divorce may be, you have a right to equitable distribution of marital property, to get custody and visitation of your child, and more. You do not have to give up everything if the divorce was your fault.
To learn more through a confidential, no-obligation evaluation, contact a divorce lawyer today.