Can Children Express Preference in Alabama Custody Proceedings?

Often, separating or divorcing parents will have different opinions on where their children should live post-separation. The children may also have their own opinions regarding where they want to live and their preferred parenting time schedule. Many states require judges to consider children's opinions when determining custody.

This article will explain how a child's preference affects custody in Alabama. If you have additional questions about the effect of a child's custodial preference in Alabama after reading this article, you should consult a local family law attorney.

Overview of Custody Decisions in Alabama

When parents can't agree on child custody, a judge will decide. In Alabama, the court must give custody of children one of the child's parents when they separate. Judges base their decisions on the child's best interests, including the child's safety and well-being. (Ala. Code § 30-3-2(a).)

When determining custody, Alabama judges must consider all of the following factors:

• the child's age and sex
• the child's emotional, social, moral, material, and educational needs
• each parent's home environment
• each parent's age, character, and stability
• each parent's mental and physical health
• each parent's ability to provide for the child's needs
• the child's relationship with each parent
• the child's relationship with siblings
• the effect on a child of changing an existing custodial arrangement
• expert's reports and recommendations
• each child's preference, if the child is of sufficient age and maturity, and
• any other factors relevant to custody. (Ex Parte Couch, 521 So.2d 987 (1988).)

No particular factors have more weight than others, and judges have wide discretion when making custody decisions.

When Will Courts Consider a Child's Preference?

Alabama courts will consider the child's preference during custody decisions whenever the child is old enough and mature enough to voice an intelligent opinion. The child's preference doesn't control the judge's decision but weighs heavily in the final decision. There is no specific age when Alabama courts must consider a child's opinion. Instead, the judge in each case must determine whether the child is mature enough to have a reasonable preference.

The child's reasons for wanting to live with one parent over the other can affect the weight the court gives the child's preference. For example, if a child is angry with one parent for a method of discipline, the court won't give the preference much weight. If, on the other hand, the child voices a better relationship with one parent, or states that one parent has been responsible for meeting educational needs, the court is likely to give the child's selection a lot of weight.

The court may also consider a child's preference in combination with other custody factors listed above. For example, one court awarded a father custody of three children when two children testified that they would prefer to live with their father and the third testified that he had no preference, but didn't want live apart from his siblings.

Preference and Best Interest

The court won't follow a child's preference if the judge believes it's against the child's best interests. In one case, a judge awarded custody to the child's mother despite the children preferring to live with their father, because an expert witness testified that the children would be better off, psychologically, with their mother.

The court also won't give any credence to a child's opinion if the judge believes one parent is manipulating the child to select him or her over the other parent.

Do Children Have to Testify About Their Custodial Preferences in Court?

Alabama law discourages requiring a child to testify about his or her custodial preferences in court. Instead, it's more common for a judge to bring the child into chambers to testify in front of the parents' attorneys, but outside of the parents' presence. Both parents must agree that the judge may speak with the child directly. The attorneys are allowed to ask the child questions on behalf of the parents. The parents can also request that the court record the conversation.

Alternatively, the court can take testimony from an expert witness who has spoken with the child about custodial preferences. For example, a court-appointed professional counselor or custodial evaluator could speak with a child and later testify in court about what the child said.

If you have additional questions about the effect of children's custodial preferences, contact an Alabama family law attorney.