How Do You Determine Child Custody?
An agreement between the parents or a court order determines child custody during a divorce or dispute. The judge generally accepts a parental custody plan if the parents negotiate an agreement that includes all factors related to their child’s guardianship and visitation. Otherwise, the court will hear each party’s argument, and the judge will determine legal and physical custody and create a visitation plan for them.
Divorce does not represent a failure on your part, and you deserve fair treatment. The best way to protect your interests and achieve your goals regarding child custody is to work with an Alabama divorce lawyer. You can get a no-obligation evaluation, can get your questions answered, and learn how a child custody divorce attorney near you can guide you through the process from start to finish.
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Types of Custody in Alabama
Child custody comes in two forms: joint and sole. Alabama law requires judges to consider joint custody—which includes shared decision-making and reasonable time spent with each parent—in all cases. Joint custody plans allow the child to see both parents each week, and both parents play an active role in their education, medical care, religious upbringing, activities, and more.
Parents must agree on three key factors or the judge will determine the outcome of the case in divorce court:
Most parenting plans in Alabama include joint legal custody. This means the parents work together to make decisions for their child, and both serve as legal guardians. Some plans may give one parent the ultimate decision-making ability, but they must consider the other parent’s opinion. Joint legal custody also extends to decisions like where the child will go to school, who provides childcare, what medical care they receive, and more.
Alabama courts will only rule for sole legal custody if the other parent is unavailable or unable to participate or could pose a danger to the child. Some parents may receive joint legal custody without getting visitation due to concerns such as drug use or incarceration.
Physical custody refers to where the child lives. Most divorces end with joint physical custody but with one parent named as the primary physical custodian. Even if the child lives at each home about half of the time, one parent will receive primary custody status.
This parent has additional responsibilities such as providing health insurance, lining up childcare, living in the district where the child attends school, and more. They generally receive child support and take the Child Tax Credit on their income taxes.
Joint physical custody results in the child traveling between each parent’s home regularly. Therefore, parents must establish a schedule. Some Alabama counties rely on a default schedule but may tweak it based on the circumstances of the case.
For example, Madison County generally awards the primary physical custodian most days of the week. The other parent sees their child the first and third weekend, Friday afternoon through Monday morning. They also spend each Thursday night with their child. The parents trade holidays and school breaks each year. During the summer, the schedule differs somewhat from this arrangement.
Settling Child Custody out of Court
Most child custody disputes do not require litigation. Even if they are hotly contested at first, most parents eventually agree through negotiations or mediation. When parents agree on legal and physical custody and a reasonable visitation schedule, the judge generally approves their plan. Working with an attorney who protects your rights can also help ensure that your plan follows Alabama law.
Sometimes, the parents reach an agreement before filing for divorce. When spouses agree on all potentially contested aspects of a divorce, they may file an uncontested divorce. This is a type of no-fault divorce. In most cases, it is the least expensive and fastest way to get a divorce.
Discuss your desire for an uncontested divorce with your attorney. It may be possible, even if you do not think your spouse will agree. Alabama recognizes collaborative divorce, which employs a specially trained coach to help both parties negotiate agreements for an uncontested settlement and dissolution. There may be options to avoid a fight if your spouse has not filed for divorce yet.
Negotiate Agreements out of Court
Many divorces have contested elements, including child custody. However, some parents still avoid litigating the case. Instead, they negotiate out of court between the filing date and the time when the case would begin, so they can agree on joint legal custody, joint physical custody, a primary physical custodian, and a workable visitation schedule.
Your attorney can help you formulate a plan that considers your preferences and your child’s best interests. They will present this plan to your spouse and their attorney, who may counter-offer. There may be trade-offs and tweaks to the plan, but a settlement is often possible.
When the time to go to divorce court is near, mediation is common. If there is no agreement by this point, the courts encourage—and sometimes require—mediation. A trained mediator proposes settlements to each side and helps them meet in the middle on a plan that works for everyone involved. Mediation is often effective and helps many parents avoid litigation.
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Getting a Court Order for Child Custody
Sometimes, parents cannot agree on all topics related to custody and visitation. This is when divorce court becomes necessary. In these situations, the judge reviews the facts of the case and issues a court order to determine child custody.
Litigating a divorce is expensive and time-consuming but may be necessary when the other parent will not give an inch. If you feel strongly that your child’s best interests should make you the primary physical custodian or limit visitation for their safety and well-being, you must fight to protect them.
Proceeding With a Contested Divorce
A contested divorce generally looks like this:
- One parent files a petition for divorce with a custody plan the other opposes.
- The other parent responds with their own proposal.
- Both parents gather support for their plan during discovery.
- Parents cannot negotiate a mutually beneficial plan.
- Mediation is unsuccessful.
- The judge puts the case on the docket.
- In court, the judge hears opening testimony, the plaintiff’s case, then the defendant’s case.
- After closing statements, the judge weighs the factors required under Alabama law and determines child custody.
- The court issues a custody order and divorce decree.
The court order outlines how parents will make decisions about their child, who serves as the primary physical custodian, what this means, and when visitation will occur with the other parent. This detailed plan also includes information about pick-up and drop-offs, child support, vacations, and more.
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Factors Considered When Determining Child Custody in Alabama
While the judge will likely approve a plan the parents create, there are several factors that Alabama law requires them to consider when awarding child custody. The parents’ preferences and agreement are only one of these factors.
Each Parent’s Preferences or an Agreement the Parents Submit
The judge looks at each parent’s proposals or an agreement both parents submitted. Any agreement will take precedence, although it is not guaranteed to receive approval if the judge does not believe it is in the child’s best interests. The best way to ensure the judge gives your agreement top consideration is to work with your attorney to create a plan similar to one the court frequently orders.
The other factors the judge must consider include:
The Child’s Current Relationship With Each Parent
The judge looks at the evidence to understand the current household dynamics and the relationship between the child and each parent. This includes who helps the child get ready each day, prepares meals, and serves as the primary caregiver. In some cases, a stay-at-home parent may prevail in this comparison. In others, both parents participate equally in the child-rearing duties, especially with older children.
The Child’s School, Activities, and Community
Alabama law prefers to keep the child in the same school, activities, and community when possible, to provide stability during this challenging time. This may give the advantage to the parent who receives the family home in property division or the primary physical custodian based on temporary custody orders in the case.
Parents must try to maintain a normal schedule for their children and continue their extracurricular sports, church activities, etc. Many judges want you to show that you support your child and their inclusion in their current community.
Each Parent’s Physical, Emotional, and Mental Health
A parent must provide adequate care and support for the child. Poor parental health may prevent this. The judge considers which parent can best provide for the child based on their health.
If the parent and child live with others after the divorce, Alabama law also allows the judge to consider their fitness to provide a safe and caring environment for the child.
Each Parent’s Financial Stability
While it is not true that the parent with the most money always gets custody, each parent should demonstrate their ability to provide for their child. This includes the home where they will live, food, clothing, and participation in their usual activities.
The Age and Gender of the Child
Young children rely on their primary caregiver much more than older children. Traditionally, this was the mother. The judge will consider the child’s age and gender to determine custody because older tweens and teens often need more support from their same-gender parents than younger kids.
The Child’s Wishes
Alabama does not have an established age where the judge must listen to the child’s input about where they will live. Instead, the judge decides if they believe the child is mature enough to form an opinion on this topic before considering the child’s wishes. Even then, this is only one factor in the court’s decision.
Of course, the judge also considers any allegations of abuse or neglect when determining child custody. Cases involving proven violence, drug use, and other dangerous behaviors may warrant sole legal and/or physical custody.
Child Custody Modifications in Alabama
In some cases, the circumstances that determine child custody during a divorce change before the child reaches the age of majority (age 19 in Alabama). When this occurs, one or both parents may request modifications of legal or physical custody or the visitation schedule. To do so, you must file a petition to modify in the court that granted the divorce.
A parent files a petition to modify after a material change in circumstances—in other words, a significant change to one of the factors that originally determined child custody and visitation that now affects the family’s current needs.
Some reasons why parents seek child custody modifications include:
- Schedule changes at work
- Changing needs of the child as they grow
- One parent moving to another state or area
- Safety concerns
- Behavioral issues
- Changing school district or attending another school
- Reevaluating child support
- A teenager’s preference
Uncontested versus Contested Modifications
Parents filing an uncontested change of custody or visitation will likely gain approval if the agreement respects the child’s relationship with each parent. Contested modifications require presenting strong arguments to the judge that a change is in the child’s best interests.
An attorney can help build your case, including filing your petition to modify and arguing for you in court. When choosing a law firm, look for one that regularly represents parents in divorce modifications.
Connect With an Alabama Child Custody Lawyer to Learn More
Our Alabama divorce lawyers are ready to handle your case and help you reach your goals for custody and visitation. We understand how difficult and stressful this process can be, and we are here to provide the support and representation you need to overcome these challenges.
A divorce lawyer can provide you with a confidential, no-obligation evaluation so parents like you can learn more before hiring an attorney or beginning the divorce, modification, or custody dispute process. You do not have to manage this on your own—your child is far too important. Call today to talk with an Alabama child custody attorney who wants to learn your story.