Child Custody Law: A Helpful Guide For Divorcing Parents

Knowing and understanding Alabama’s child custody laws and all possible scenarios will help you and your soon-to-be-ex find the best solution for your situation.

For parents facing divorce, determining a custody agreement is the most challenging aspect of the process. Alabama defines custody as the legal responsibility for the supervision and care of a minor child and outline which individuals have the authority to make the decisions required to fulfill that responsibility.

There are two significant aspects of child custody laws in Alabama: physical and legal custody. Both of these can be further divided into sole or joint custody. Our experienced divorce attorneys are experts in Alabama child custody laws. Call us for a free consultation at (256) 859-7277 or using the contact form on the website.

Physical Custody

Physical custody determines where your child lives. In a joint physical custody arrangement, the child spends frequent and continuing contact with both parents; however, this does not necessarily mean that the time spent living with each parent is equal. Depending on the child’s and parents’ schedules, they may need to negotiate different physical custody arrangements in the child’s best interest.

Sole physical custody means the child lives with one parent and has visitation with the “non-custodial” parent. There are many reasons why one parent may have sole custody. For example, the non-custodial parent may live far away from the child’s home. Or perhaps, one parent is better equipped to handle the child’s day-to-day needs.

You might be stressed about arranging a fair and beneficial custodial arrangement for your child. Finding a caring, highly qualified legal professional to handle all the details can make all the difference. Contact Summit Family Law’s child custody attorneys today to schedule a consultation and learn how the laws in Alabama affect your case.

Legal Custody

Legal custody refers to the decision-making authority in a child’s life. Joint legal custody indicates that both parents share in the decision-making process concerning the child’s medical, educational, and spiritual needs. Sole legal custody grants the right to make these decisions to one parent.

Making the Agreement

“Parents can reach a custody agreement informally, via a mediator, or a judge’s court decision. Regardless of how you plan to reach a custody agreement, it would help if you did not negotiate or make any agreements without first seeking legal advice,” wrote custody attorney Edward Tsui for Expertise.

Agreeing outside of court, with the help of your family law attorneys, is your best option for creating a custody arrangement that will be most custom-fit for your family, work, and social schedules.

Unfortunately, divorcing couples often cannot reach an amicable agreement.

If you and your ex cannot come to an agreement, the terms and decision will be in the hands of a judge, who will consider various factors to create an arrangement that serves the child’s best interest.

Factors for Consideration in Determining a Child’s Best Interest

Under Alabama law, the parents must show that the child custody arrangement is in the best interest of the child.

When creating a custodial agreement that benefits all involved parties, your lawyer will consider: 

• 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 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 is if they are old and mature enough to offer that opinion;
• Any reports or recommendations of experts or independent investigators; and
• Available alternatives and other relevant matters that are supported by evidence.

“Violation of visitation rights can have serious consequences. If the violations are continuous, a judge may find the violator in contempt of court. In some states, interference with visitation may be a criminal offense. Because visitation rights can be complicated and contentious, if you suspect any violation, it’s crucial to speak with an attorney,” says Tsui.

Uniform Child Custody Jurisdiction and Enforcement Act

Child custody law varies from state to state. Still, all 50 states and the District of Columbia have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA attempts to minimize or eliminate child custody conflicts from state to state by allowing each state to recognize and enforce custody orders made in other states.

The Act also gives a judge the authority to sign a warrant for law enforcement to take physical possession of the child if the enforcing court is concerned that the parent with, physical custody of the child, will flee or harm the child. Also, the uniform act gives a court the duty to enforce a custody determination of another state. A child custody order of another state is not subject to modification.

Parental kidnapping can have devastating consequences for the child and the parent who is left behind. It is a crime that can result in both criminal and civil penalties. Fortunately, the UCCJEA tries to prevent parental kidnapping by empowering the courts of every state to enforce child custody orders of sister states. 

More About the UCCJEA and Child Custody

The UCCJEA dates back to 1997. Since being enacted, the law has improved cooperation between states on child custody issues. The Act helps on many matters, the most notable revolving around parents or guardians who leave a home state without consent from the relevant parties.

In the first few years of being enacted, the UCCJEA attracted 21 member states. Two decades later (in 2019), all U.S. states apart from Massachusetts had adopted the law.

The UCCJEA allows courts in different jurisdictions to cooperate on custody, visitation, and related matters, like apprehension and punishing individuals (parents or guardians) who remove children from a home state without permission.

As per the UCCJEA, a home state or the state that issues the most recent child visitation or child custody orders automatically becomes the state with jurisdiction. For instance, if a child was born or spent most of their childhood years in New York and a guardian/parent moves the child to Florida to avoid visitation/custody rulings, such a move would be considered a UCCJEA violation.

There may be complications when a child’s home state isn’t distinguishable. For instance, a child can grow up in one state and reside in another for several years. In such a case, the child would have cultivated a new group of friends, involved themselves in extracurricular activities, and had many other engagements in both states. If that is the case, judges have more complex decisions to make.

In most cases, judges will consider the time spent in a state about their age, number, and depth of substantial connections to that state to determine a home state or the state with jurisdiction regarding child custody.

Changing Jurisdiction in a Child Custody Case

It is possible to change jurisdiction. However, the process is complex, given the significance of existing court orders. The process is usually straightforward when both parents can agree on the change. A seasoned child custody attorney can assist in filing the necessary forms in court to change jurisdiction. An experienced family attorney can also assist in handling cases where jurisdiction changes aren’t easy.

The law (UCCJEA) is changing jurisdiction in child custody cases. A home state doesn’t have to be the state of birth. A change can be facilitated legally if a child’s best interests are examined, and it is established that they are invested in a new form.

Alabama Custody Laws FAQs

When your family goes through a child custody dispute in Alabama, you may feel scared, worried, and confused about what to expect next. In the hopes of helping you understand what’s to come, we have provided the answers to some of the most frequently asked questions surrounding Alabama child custody laws below. 

If you have additional questions not answered on this page, contact our office to discuss your concerns in greater detail.

Which Type of Custody Is Preferred in Alabama?

Joint legal custody is generally preferable in Alabama because it allows children to have frequent contact with both parents. Parents are also able to share rights and responsibilities better.

In every case, joint legal custody is considered even if parents aren’t for it since the law assumes it works best for the child. Unless unique findings show why joint legal custody isn’t suitable for the child, the court will usually consider it first or create another custody plan.

Joint physical custody is viable if both parents live near each other. Moving to/from residences is easy if the homes are nearby. The distance can affect a child’s education, social activities, and other factors. 

What Does the Law Say About Abandonment and Child Custody in Alabama?

Per Alabama Code Section 30-3-1, a wife found guilty of abandoning her husband can lose child custody when the child turns seven. This law is subject to a judge establishing that the husband fits the description of a suitable person.

What Does Alabama Law Say About Child Custody and Domestic Violence?

Domestic violence can have a significant impact on child custody cases in Alabama. If a parent has a history of domestic violence, the court will consider this when deciding custody and visitation.

Any parent found guilty of committing family or domestic violence is presumed by Alabama law to be an unsuitable parent. As a result, they are automatically disqualified from getting custody. The judge may require supervised visitation or not award any visitation at all if they fear for the child’s safety. Family or domestic abuse is any incident that involves threats or attempts resulting in abuse, assault, harassment, or stalking.

However, a reasonable child custody attorney can defeat this presumption and give custody to the parent guilty of violence if it is shown that their conduct isn’t detrimental to their child. The court can take the appropriate action to ensure visitation is safe.

It’s important to note that victims of domestic violence can take action to protect their children. They may be able to get a restraining order against the abuser and document any incidents of abuse. It is also crucial for victims to seek support from family, friends, and professionals such as counselors and attorneys.

Can Child Custody Orders Be Modified in Alabama?

It is common for child custody orders to need modifications. Modifications may be expected as your children grow up and have different needs. Fortunately, the state of Alabama does allow child custody orders to be modified. The law allows you to request a modification to the existing custody order if there’s a material change in circumstances.

Examples include: 

• A change in the parent’s living situation,
• A change in the child’s behavior or needs, or
• A change in the parent’s ability to properly care for the child.

However, if you hope to get your modification request approved, you will need to show that the modification request in question is in the best interests of your child. 

For example, suppose you were interested in relocating to another state and were hoping to obtain physical custody of your child when they had spent the last five years living with their other parent. In that case, it is unlikely you could get a judge to grant your request. 

However, if the child was old enough to give their opinion on the matter, and you had evidence to support that the move would be the best option for your child, the judge may be more willing to grant your child custody modification request. 

The courts prefer if you can work out an agreement with your child’s other parent. That way, the judge can approve your new child custody agreement. Otherwise, requesting a custody modification order can be complicated and involve one or more court hearings and mediation sessions. If you’re the parent requesting the modification, you must submit evidence that supports your request. The responding parent has the right to contest your request for modification. 

What Happens If Either Parent Fails to Follow the Child Custody Order?

Child custody orders are legally binding. When either parent fails to adhere to the terms of a child custody order, they could be found in contempt. When this happens, they could face criminal penalties, including fines and jail time. 

For this reason, following your child custody order is essential if you hope to avoid issues in Alabama Family Court. However, if you have reasonable cause for failing to follow the child custody order, you may be able to prevent a criminal penalty. 

It should also be noted that only court-ordered child custody agreements are legally binding. If you and your child’s other parent have yet to enter a child custody agreement, there is no child custody order. Instead, if you are unmarried, the child’s biological mother will retain legal and physical custody rights until the child’s biological father takes legal action to prove and assert their custody rights.

Visitation in Alabama

Many people quickly assume that child custody and visitation rights are the same. However, visitation and child custody are different under Alabama law. 

What’s Best for the Child?

Generally, it is assumed that children are best brought up when they are in contact with both parents. As a result, if a child stays with one parent, the other one usually gets parent visitation rights. A visitation schedule is prepared based on the unique circumstances of a case. However, the main determining factor is what is best for a child.

Living Conditions

The living conditions of the parents can affect custody and visitation. If both reside in Alabama, a minimum visitation schedule can be mandated. If one parent stays outside Alabama, a more complex visitation schedule has to be prepared. Courts usually offer longer visitation during extended holidays like summer or winter.

Supervised Visitation

As mentioned above, violence also plays a role in determining child custody. Visitation can be crafted to guarantee a child’s safety if there is a history of violence or related issues like child abuse, addiction, etc. In such cases, visitation is usually supervised to guarantee the child’s safety as well as the safety of the other parent.

Generally, a third party must be present for visitation to take place. The court-approved third party monitors the interaction between the child and the parent. Alternatively, visitation may take place in particular locations (i.e., state-sanctioned facilities). If the risk of violence is low, a court can allow visitation in the presence of a family member or trusted friend.

The benefits of supervised visitation can include:

• Protecting the child from potential harm or abuse, 
• Providing a structured and safe environment for the child and parent to interact, and 
• Allowing the parent to maintain a relationship with the child even if they cannot have unsupervised visitation. 

Potential drawbacks include the cost of hiring a court-approved supervisor, the potential for the child to feel uncomfortable or anxious during the visits, and the parent’s limited time with the child.

Unsupervised Visitation

Unsupervised visitation is the most common type of visitation arrangement in Alabama. In unsupervised visitation, the parent is allowed to spend time with the child without the presence of a court-approved third party. 

The benefits of unsupervised visitation include:

• The ability for the parent and child to bond and establish a relationship, 
• Increased flexibility in scheduling visitation, and 
• Lower costs compared to supervised visitation. 

However, there are some potential drawbacks of unsupervised visitation. They include the potential for the child to be exposed to harmful behavior or environments, the risk of the parent not returning the child after the visit, and conflict between the parents during exchanges.

A court can permit unsupervised visitation if there is little to no risk. However, the court can attach some conditions to unsupervised visitation if there are any concerns.

For instance, a bond may be required from a visiting parent. What’s more, the timing for visitation may be set. Ideally, overnight visits aren’t allowed if there is a history of violence. A parent may also be ordered to abstain from drugs and alcohol before visitation.

Virtual Visitation

Virtual visitation is a relatively new type of visitation arrangement that allows parents to interact with their children through electronic means, such as video chat, email, or instant messaging.

The benefits of virtual visitation include: 

• Allowing the parent and child to maintain a relationship, even if they are physically separated; 
• Providing a way for the parent to stay involved in the child’s life when in-person visitation is not possible; and 
• Reducing the costs associated with travel and supervision. 

However, the drawbacks of virtual visitation include the potential for the child to feel disconnected or less engaged during the visits, the inability to engage in physical activities together, and the potential for technical difficulties or interruptions during the visits.

Grandparents’ Visitation

Grandparents denied visitation rights in Alabama could seek visitation through the court system. However, the process can be complex, which is why it’s essential to seek the advice of an experienced family law attorney.

Under Alabama law, grandparents can seek visitation rights in certain situations.

Potential examples include: 

• The parents are divorced (or the child is born out of wedlock) and the grandparent’s child (the parent of the grandchild) is deceased; 
• The grandchild lived with the grandparents for at least six months; or 
• The grandparents previously had a significant relationship with the grandchild that was unreasonably curtailed.

The court will consider multiple factors when determining whether to grant grandparent visitation rights, including:

• What’s in the child’s best interests, 
• The relationship between the grandparent and the child, 
• The relationship between the child and the parents, 
• The wishes of the child, and 
• Any other relevant factors. 

It is important to note that grandparents do not have an automatic right to visitation, and the court will consider each case individually.

Get Help from a Child Custody Lawyer in Alabama Today

Child custody law is a broad subject. While we’ve attempted to cover the most critical aspects above, you want a seasoned Alabama child custody attorney to advise you.

Contact us to learn more about how Alabama child custody law applies to your situation. We want to help you create a child custody agreement that supports your rights as a parent.

It’s not an easy process, but with the right family law attorney, you can leverage how the situation is treated and come through the experience more financially prepared. Talk to a professional in Summit Family Law by calling us now at (256) 859-7277 or using the contact form.