Choosing the Right Child Custody Attorney in Alabama
Child custody and visitation or access laws in the State of Alabama generally are in favor of both parents having some form of custody in order to best raise children.
What is Child Custody?
Custody is defined by the state as the legal responsibility for the supervision and care of a minor child—those under age 19—and about which individuals will have the authority to make the decisions that are required to fulfill that responsibility.
In a divorce proceeding, the judge will issue a custody order that will typically speak to both legal custody and physical custody.
Legal custody pertains to the parent with the primary responsibility and authority to make major decisions about the child’s life. These are things like schooling, health care, and religion. There are two types of legal custody: (i) “sole legal custody” refers to when only one of the parents has these rights; and (ii) “joint legal custody” is where both parents have the same rights and responsibilities for the major decisions for the child.
Sole Legal Custody
Sole legal custody is the term that’s given to the parent who has the child living with him or her for the majority of the time. When a parent has “sole physical custody,” the other parent typically will be allowed visitation with the child. The other parent who will also usually have to pay child support to the parent with physical custody—otherwise known as the “custodian” parent. The other parent is called the “non-custodial” parent.
Joint Physical Custody
“Joint physical custody” means the same thing as “shared parenting” and is where both parents have equal legal custody—but not always equal physical custody of the child. Both parents have an equal right and responsibility to make all of the important decisions on issues of health, education, general welfare, and religion affecting their child. But this type of arrangement doesn’t always mean an automatic 50/50 split.
Charlotte will tell you that joint legal custody means that the parents must communicate with each other and discuss what they believe is best for the child. It takes good cooperation from both parents. This may entail some compromising on decisions, and definitely means a dialog and listening.
The State of Alabama generally wants to make sure that minor children have frequent and continuing contact with both parents, provided that they’ve both shown that they have the ability to act in the best interest of the child. The State also wants to encourage parents to share in the rights and responsibilities of raising their children after the parents end their marriage.
Custody is not always awarded to just one parent. A judge will in many cases award at least partial custody to both parents. This is called “joint custody.” Joint custody takes one of three forms:
- Joint physical custody, where the child spends a substantial amount of time with each parent;
- Joint legal custody, where both parents share in the decision-making process of any medical, educational, and spiritual issues concerning the child; or
- Both joint legal and joint physical custody.
Judges are required to consider possible joint custody in every case, but there’s no presumption in favor of this unless both parents agree. The judge will weigh the following factors when determining if joint custody is in the best interest of the child:
- Whether the parents agree to joint custody;
- Whether the parents will cooperate in making decisions concerning the child;
- The ability of the parents to encourage a good, loving relationship between the child and the other parent;
- Whether either parent has committed or possibly may commit child or domestic abuse, or kidnapping;
- The location of each parent and the logistics of joint custody; and
- Other factors that a judge believes may impact the best interest of the child.
If none of the factors clearly favors one parent over the other, judges will typically look at which parent is most apt to give the child a stable environment and the parent who is better at cultivating the child’s relationship with the other parent. When the child is younger, many times this will mean the judge will grant custody to the parent who’s been the child’s primary caregiver, but when the child is older, the judge may look at which parent will be able to better able to foster continuity in the child’s education, community, religion, and socialization.
Exceptions to Shared Parenting
There are some circumstances where joint legal custody or visitation are not options for the court.
In instances of domestic violence, shared or joint physical custody could be dangerous.
The abusive parent typically has power and control over the victim, which creates a situation where the victim’s safety is at risk. If the parent who has been the victim of domestic violence can’t provide equal input and power in the relationship for fear of further abuse, decisions on the child’s welfare won’t be made together and will usually be made by the only the abuser. This can only make the situation worse. However, in Alabama, if the judge decides that there’s been domestic abuse, he or she will assume that it’s not in the best interest for the abuser to be granted sole or joint custody. Nonetheless, the abusive parent is still given the opportunity to convince the judge that it would be in the child’s best interests to give him or her custody.
One of the parents is entitled to custody, unless there is reason to believe that both parents are unfit. In the event that the parents are unfit or no longer alive, the judge can award custody to another individual or to the Department of Human Resources, based upon what the judge thinks is in the best interest of the child. When custody can’t be awarded to one of the child’s parents, most judge’s support the idea that custody should be awarded to another relative, provided that this will be a safe environment for the child.
The Custody Process
The judge takes several factors into consideration when making the decision about which parent will get custody. A judge will look at the following factors in deciding what he or she believes is in the best interest of the child:
- The child’s gender and age;
- The child’s emotional, social, moral, material, and educational needs;
- The home environments of each parent;
- The characteristics of those seeking custody (usually the parents), such as age, character, stability, and their mental and physical health;
- Each parent’s willingness, ability, and interest to provide for the emotional, social, moral, material, and educational needs of the child;
- The interpersonal relationship between the child and each parent;
- The interpersonal relationship between the child and any other children in the family;
- The impact on the child of disrupting or continuing the current situation;
- The child’s preference if he or she is old and mature enough to offer that opinion;
- Any reports or recommendations of experts or independent investigators;
- Available alternatives; and/or
- Other relevant matter that is supported by evidence.
Alabama law says that past or future military deployments can’t be looked at by the judge as the only factor when making or modifying a child custody or visitation determination.
Filing for Custody
One of the married parents who are in a divorce proceeding will usually file for custody as part of his or her divorce pleadings. In some situations, both parents make this request.
In all cases, you’ll have to have Charlotte draft a petition for custody and file it with court, along with the filing fee. Once she files your paperwork, you may have to attend a family court hearing, as well as completing other actions and paperwork.
Typically the law says that you can only file for custody in Alabama if this is your child’s “home state.” Alabama will be your child’s “home state” provided that:
- Your child lives in Alabama, and has lived there for at least six consecutive months before you file for custody;
- Alabama is the last state where your child lived for at least six consecutive months prior to your filing for custody; or
- Your child is less than six months old but has lived in Alabama his or her entire life.
If your child leaves Alabama for a short time—for example, taking a vacation—this usually doesn’t change the status as his or her home state. However, if your child recently moved from Alabama to another state, you typically can’t file for custody in the new state until your child has lived there for at least six months. Until that time, you or your ex-spouse can initiate a custody action in the State of Alabama—provided your child has most recently lived there for at least six months.
In the situation where you and your child just moved into Alabama from another state, you’re not going to be able to file for custody in Alabama until you’ve lived here for at least six months. Until then, you or your ex-spouse can begin a custody action in your old state—but again, your child has to have most recently lived there for at least six months.
Exceptions to the “Home State Rule”
In some instances, a parent is permitted to file for custody in Alabama when the child and at least one parent have “significant connections.” Alabama Code § 30-3B-201(c) says that this must be “more than mere presence” and that there’s “substantial evidence pertaining to the child’s care, protection, training, and personal relationships in Alabama.” But you can only do this if there’s no home state or if the home state has agreed to let another state have jurisdiction or control over the case. The statute says that the court in your child’s home state may decline to exercise jurisdiction on the ground that Alabama is a “more appropriate forum” to decide the issue of child custody, and the child and at least one of the parents have a significant connection with Alabama.
This can get sticky, so Charlotte will explain it all to you if it looks like it will apply to your situation.
Temporary Emergency Custody
A parent is also allowed to file for temporary emergency custody in another state (one other than the home state) if the child is present in that state and the child has been abandoned, or it’s necessary in an emergency to protect the child because threats of harm or abuse.
Uniform Child Custody Jurisdiction and Enforcement Act
You may hear something about this legislation.
The Alabama Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies in cases where a custody decision is made or which impact access to a child—including divorce, legal separation, neglect, dependency, guardianship, paternity, termination of parental rights, and protection from abuse concerning the legal custody, physical custody and visitation of children are decided.
Alabama has passed the Uniform Child Custody Jurisdiction and Enforcement Act, which limits the state with jurisdiction over child custody to just one. This legislation gives a uniformity of law and avoids competing court orders and provides enforcement provisions for child custody orders with a public that’s very mobile and many folks move several times in their lives. This makes it imperative to have laws on child custody determinations uniform from state to state. Without this uniformity, costs of enforcement action go up, the certainty of outcome is lessened, and it can make the enforcement of a child custody or visitation order into a difficult and tedious process.
The Act also gives the judge the authority to sign a warrant to take physical possession of the child if the enforcing court is concerned that the parent, who has physical custody of the child, will flee or harm the child. Also, the new uniform act gives a court the duty to enforce a custody determination of another state (but a child custody order of another state is not subject to modification).
Finally, under the new act, the government is authorized to locate a child and enforce the custody determination, and the prosecutor is authorized to utilize any civil proceeding to secure the enforcement of the custody determination.
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Reasonable and Fair Visitation
Typically, when a judge awards physical custody to one parent and “reasonable” visitation to the other, the parent with physical custody is usually has significant influence as to what is reasonable. Charlotte will tell you that this isn’t a major issue when both parents cooperate to see that the child enjoys a significant amount of time with each of them. However, in some instances this can mean little visitation time with the noncustodial parent and fights over missed visits and inconvenience. To avoid this, many judges will ask the parents to draft a detailed parenting plan with the visitation schedule and responsibilities for decisions that impact the child.
In Alabama, grandparents can petition and be awarded visitation, as long as the judge believes this to be in the best interests of the child, and one of the following conditions exist. Grandparents are permitted to request visitation outside of an on-going divorce and custody case if:
- One or both of the parents has passed away;
- The parents were divorced or were never married;
- The parent abandoned the child; or
- In the situation where the child is living with both biological parents and are still legally married to each other, but either or both parents have prohibited a relationship between the child and the grandparent.
A grandparent can petition for visitation only one time during any two-year period—but not in a year when there is another custody action on-going concerning the child. Nonetheless, a petition by one grandparent doesn’t prevent any other grandparent from filing within that same two-year period.
A great-grandparent can’t file for visitation.
If the grandparent is filing for visitation in an existing or a new case, if the fit, natural, custodial parent objects, the grandparent is required to prove that the denial of it would harm the child. If the judge thinks that this is so, he or she will decide if it’s in the best interest of the child to have visitation. The factors include the following:
- The willingness of the grandparent to encourage a close relationship between the child and the parent;
- The preference of the child, if the child is old enough to state his or her preference;
- The child’s mental and physical health;
- The grandparent’s mental and physical health;
- Evidence of domestic violence inflicted by one parent upon the other or the child. If the judge makes a determination that there is evidence of domestic violence, visitation rules will be made to protect the child, parents, or grandparents from further abuse; or
- Other relevant factors in the specific situation, including the wishes of any living parent.
If the court finds that the grandparent can afford a guardian ad litem for the child, the judge may appoint one at the grandparent’s expense. In addition, if the grandparent’s son or daughter gave up or lost legal custody of the grandchild, or financially abandoned the child, the grandparent can’t be granted visitation unless the grandparent already has an established relationship with the child, and the court finds that grandparent visitation is in the best interests of the child.
In cases of abuse and domestic violence, if a parent isn’t comfortable with the abuser being alone with the child, Charlotte will request that the judge order supervised visits with the child. In these situations, the judge can order a professional (such as a social worker or state employee) or another relative to observe the other parent on a certain number of visits. Provided that there are no issues from these supervised visits, future visits may be unsupervised.
After visitation rights have been granted to any grandparent—the legal custodian, guardian, or the child’s parent is allowed to petition the court to revoke (terminate) or amend the visitation rights if there’s a good reason. This type of petition can only be filed once in any two-year period, unless there’s a showing of abuse or some other exceptional circumstances.
Getting a Custody Order
There are many reasons people choose not to request a custody order from a court. Some individuals don’t ask for a custody order because they don’t want to the courts involved and agree informally. In other circumstances, parents believe that asking the judge for a custody order will cause more problems and increase the hostilities with the other parent, or they fear that the other parent might be granted custody or visitation.
However, a custody order from a court can give you certain legal rights, such as:
- The right to make decisions about your child;
- The right to physical custody of your child; and
- Protection for your child and you from the other parent using these rights against you.
- Without a custody order, both parents may share these legal rights, even if they weren’t married.
The Judge’s Custody Award Decision
Even though you know that you’re the better parent and should have custody of the child, the judge may decide against you. Charlotte counsels her clients to be ready to accept the judge’s decision and make their best efforts to work with their ex-spouse to raise the child in a way that benefits all.
After the judge makes his or her decision of custody and visitation, the judge will sign an order, which will be filed with the clerk of courts. Each of the parents is legally obligated to comply with by this order; failure to do so may lead to being held in contempt of the court.
Shared Parenting Agreement
The purpose of a shared parenting agreement is to reach a compromise on how to raise and care for the child jointly with both parents sharing in the responsibilities and staying in their day-to-day life. Shared parenting agreements must have flexibility and the dedication of both parents to work in the best interest of the child. Charlotte says that each parent must really commit to encourage and respect the relationship of the child and the other parent.
Charlotte asks you to remember that you are divorcing from your spouse, not your child. A shared parenting agreement that’s negotiated before a judgment of divorce has a much better chance of being approved by the judge and can help decrease stress to your child during the divorce process and after it’s finalized.
Relocation of a Parent
Alabama law has a presumption that in most circumstances, a distant relocation is not in the best interest of the child. The custodial parent who is thinking about moving out of the immediate area is required by law to give notice to the non-custodial parent. The non-custodial parent has the right to object to the move, and he or she is entitled to a hearing by the judge to consider the move.
Alabama law says that the parent is required to inform any other individuals who have custody or visitation rights to a child (the other parent or a grandparent, for example) when he or she is contemplating to move with the child. This notice is to be given at least 45 days before the move by certified mail. The notice also should give the other parent details about the move, such as contact information, school information, the date of the move, and the reasons for the move. The court may also ask for information about the other parent’s right to object.
But if you didn’t know—and there was no way for you to have known—about the move 45 days in advance, and it’s not possible to delay moving, the time limit to give notice is shortened to within 10 days after you know you’ll have to move.
In addition, a judge may excuse the notice requirement for a victim of domestic violence or where the child’s safety could be in danger. To that end, the judge can order that the contact information of the child and/or victim be kept private in court.
The other parent has the right to object to the planned move. He or she can ask the judge to order that the move not take place.
The objection must be filed within 30 days of when that individual received notice of the planned move. Further, the non-relocating parent may not object to a move if the child won’t be moving to another state and the move results in the child living less than 60 miles from that parent, or if the move means that the child will be living closer to the non-relocating parent.
The judge will assume that unless the parent objecting to the move has been found to have committed domestic violence or child abuse, a move isn’t in the best interest of the child. The parent will have to show the judge that it’s in the best interest of the child to move in order for and the judge to decide that the child is allowed to move.
Those non-parents who have been granted visitation may only ask the court for modification of their visitation rights.
Change in Custody
If the parents are already divorced, Charlotte can file a petition for a change in custody in the county where the divorce was issued. But if the parents were never married, either parent can file for custody in the county where the child’s been living for at least six months.
One more thing: remember that in a custody dispute—even though you’re hurting and angry—it isn’t about you. It’s about your child. The judge will be tasked with trying to make certain that his or her decision is fair and in the best interest of the child.
There are guidelines that a judge will apply to help decide a custody situation. In addition, a judge will consider the evidence and testimony from both parents to answer questions about the following:
- Which parent provides the most emotional and moral support to the child;
- Which parent takes care of the child at home;
- Which parent is in charge of the child’s education;
- If a parent has a history of alcohol or drug use;
- If domestic violence is involved; and
- If one household is safer for the children than the other.
In the event that a parent is denied visitation by the judge, the parent may ask the court to reconsider by filing a “Petition for Modification.” Again, if the judge believes that it’s in the best interest of the child, he or she may grant a change in the visitation order.
Also, if a parent interferes with the visitation schedule, Alabama law says that a judge can require that parent to post a performance bond to guarantee that he or she will comply with the judge’s orders. This means that the offending parent will have to pay a certain sum of money to the court and promise to follow the visitation order. In addition, the judge has the authority to use any method he or she feels will be effective to enforce the court’s visitation orders, such as further modification, fines, or time in jail.
Leaving the Child
If one parent moves out and leaves the kids with the other parent, it can impact that parent’s chances of getting custody later on. This can be true even when a parent leaves to get out of a dangerous or highly unpleasant situation. If a parent hopes to have physical custody later, you shouldn’t leave the child behind in the situation. Our firm would advise you to take the child with you. She will file for temporary custody and child support. Family law judges typically do not look favorably upon parents who remove a child from the home without first seeking the court’s permission. It’s possible that a judge may order that the child be returned to the family home until proceedings are held to decide the issue of physical custody.
Moving Children Away from the Non-Custodial Parent & Child Custody
In Alabama, the Parent-Child Relationship Act provides that the custodial spouse must give notice, along with other information, to the noncustodial spouse of his or her intent to move. The custodial spouse cannot move the child more than 60 miles from the residence of the noncustodial spouse without the court’s authority, and the court must deem the move to be in the best interest of the child.
Why do you need a family lawyer? As child custody and support is awarded by the judge, you need an assertive law firm, who knows Alabama custody laws intimately and will forcefully and persuasively present your position in order to only accept what is right for your child or children and you.
Helping Your Attorney
The best way to make your case for custody is to provide sound rationale for why the child will be better off living with you. If any of these are true about your ex, you can let Charlotte know:
- You’ve been the parent who’s had primary responsibility for getting the child to school on time, ensuring homework is finished, participating in school functions, attending teacher conferences, and being in charge of other school communications.
- The child has always lived in the same house and moving would be stressful;
- The other spouse has moved away from the child’s school and it’s easier for him or her to stay in the same school, especially if it’s mid-year;
- You make enough to provide for the child with fair child support;
- You have family nearby and the child has a strong relationship with your family;
- Your family is supportive and is available to help with child care in emergencies; and/or
- You have the role as the “primary caregiver”—preparing meals, keeping the home (e.g., doing the cleaning, laundry, and grocery shopping), taking the child to appointments with healthcare professionals, and have been in charge of the child’s overall in safety, health, and well-being.
All of those points will make your case for custody, especially if you have evidence that supports this. However, you won’t want to spend too much time discussing how poor a parent the other party is, as it won’t help you case—you just want to show the court that you are (and have been) ready and able to take great care of your child. The judge may not consider any details of your ex-spouse’s behavior, such as infidelity, failing to find work, excessive drinking, or poor attitude, unless he or she finds that such behavior and facts will place the child in danger or jeopardize the child’s safety when he or she is living with the ex-spouse.
If you have evidence that tells of a pattern of such negative behaviors, the judge may consider this. Discuss this with Charlotte so that she can prepare your argument and decide if this information about your ex is relevant and needs to be brought to the judge’s attention.
Best Practices for Obtaining Child Custody in Alabama
Alabama enacted into law its state policy that parents for a presumption of joint custody between parents is in the child’s best interest. Ala. Code §30-3-150. Joint, though, does not mean equal time with each parent. What the court determines to be in the “best interests of the child” is the basis for all awards of child custody and visitation.
For success in child custody matters, knowing what factors the court can consider in determining child custody, and acting accordingly, is vital. If parents cannot come to agreement on a custody arrangement, the court will take the following factors into consideration in making the decision for you:
- Whether one or both parents foster a relationship with the other parent, or act to thwart a positive relationship between the child and the other parent
- The nature of the relationship between each parent and the child
- A parent’s ability to meet the emotional, educational, material social and moral needs of the child
- The respective home environments
- The age, character, stability, mental and physical health of each parent
- Age and gender of children
- The relationship between children
- Reports and recommendations of any expert or independent investigator
- Desires of the child if of appropriate age and mind
- Domestic violence in the households
- Any other relevant matter evidence discloses
- Additional factors are considered for joint custody including cooperation of the parties, proximity of residences and desire for joint custody
No matter what age, the child should not be put in the middle of a dispute between parents or be made to choose one parent over the other through the efforts of one parent. In all actions, consider how the court will view the behavior. Are you harming the child, helping the child or perhaps helping yourself by inadvertently harming the child?
Surely there are situations involving abuse where a child must be protected from the other parent, but this writing presumes a relationship absent abuse.
A court looks at your behavior and character as it relates to the well-being of your child in all respects. For success in child custody determinations, acknowledging that “success” may be a joint parenting arrangement or a sole custody arrangement or something in between, act appropriately:
- Involve yourself in a positive way in your child’s life, ie. Attend sporting events, parent/teacher conferences, medical appointments, ballet lessons, make cupcakes when asked, know who your child’s friends are and meet their parents, know what your child is doing and where he or she is all the time and make the time to know any childcare providers
- Make certain that your behavior in the child’s presence never presents a negative picture of the other parent (eye rolling and clenched jaws can be perceived by the child for what they are)
- Make all reasonable efforts to foster a positive relationship between the child and other parent, always speaking well of the other parent to the child
- Discuss major decisions and issues with the other parent, if at all possible; at least make the sincere effort to do so
- Help with homework, talk to your child about their day, involve yourself in your child’s life, but do not ever under any circumstances put the child in the middle of a custody dispute
- Do not play games with the other parent, ie. Do not call the police because the child is 5 minutes late in returning with the child, do not call Child Protective Services because the child fell and got a bruise while roller skating with the other parent
- Keep a calendar, which the child will never see or find, of the other parent’s participation in the child’s life, including visitation or parenting time taken advantage of by the other parent, missed parenting time and such things
As a parent, you already know that you need to be doing these things. Your parenting will be judged by a court, and that judgment will see through insincere efforts. If your goal is success in an award of custody, it really is as simple as this: be the best parent to your child that you can possibly be. Courts love that.
Don’t Lose Control
Charlotte will tell you this throughout the divorce process: even if you’re ready to blow you top, you have to remain calm. You might be upset, frustrated, and furious with your ex and the things he or she is doing or saying, but must keep your cool. Losing control will only hurt your case and make it more difficult for a successful outcome.
In the same light, don’t show your anger and stress to your child. Anything negative that you say might make the child believe that he or she must pick a side in the dispute.
Cooperate with the Other Parent
Just like any other component of the divorce process, issues of child custody can be heated and contentious. Even so, it’s critical that you try to cooperate with your ex on issues of your child’s care and well-being. This means talking about important events on the calendar, like school functions and playdates. Make sure to deliver your child to the other parent’s home with the appropriate clothes, books, and toys. Judges dislike dealing with uncooperative parents. This means that the child will also pay the price.
Stay on top of things. This is not the time to “wing it” and play fast and loose with your schedule. A judge will not like the fact that you miss appointments with your ex, court hearings, or the child’s commitments. You need to be prepared and know the other parent’s work schedule, the daycare center’s hours of operation, and be able to transport your child to swimming practice and trombone lessons. These can become very important issues, and it creates stress for everyone when you miss something and don’t communicate with your ex about these issues. Make sure that are doing everything you can to accommodate your work schedule around your child’s needs—like having contingency plans ready if you need to stay late at the office. Also, take interest and look into summer camps and school programs. Judges like to see that parents are being proactive in finding ways to improve the child’s life and doing so in concert with the other parent.
Obey Court Orders
If you want to get into hot water and make your situation much worse, go ahead and disobey or ignore a judge’s court order. This will only put you in a worse custody position. And remember that you’ll have to face the same judge who issued the order originally: hearings for contempt of a custody order are typically held before the issuing judge. Think of it as breaking that judge’s personal law he or she created just for you and your ex-spouse! You may not hurt the judge’s feelings, but you will definitely irritate him or her—it’s like a slap in the face, and no judge like that. Do what you’re told to do.
It’s a really good idea to keep a journal of important events that record how the custody arrangement is going. This means that if your ex isn’t complying with the custody agreement, is making negative comments to the child, or is engaging in other behavior you think is inappropriate—make note of this in your journal. On the other hand, you should also write down the positive things that you and your ex have done in your journal. A custody dispute may frequently take some time to be resolved. A complete journal lets you show Charlotte specific conduct on specific dates that she can bring to the attention of the judge. These types of details are much more persuasive than general and vague comments about what your ex did or didn’t do.
At Charlotte Christian Law, we know that custody issues might be the most difficult part of any divorce case. No parent wants to harm his or her child or children — and custody disputes are typically hardest for the children. Throughout North Alabama, you can call us at 256-859-7277 or contact us online to set up an initial consultation concerning child custody and visitation rights.