In Alabama, as in most states, courts decide custody issues based on the best interests of the child. Court cases lay out a series of factors the court should consider in making this decision. And, Alabama statutes list an additional set of factors courts must look at when deciding whether to award joint custody.
This article answers some common questions about custody determinations in Alabama. For all of our articles on divorce issues in Alabama, see our Alabama Divorce and Family Law page.
How will the Court determine where my children should reside after the divorce?
Under Alabama law, at the time of a divorce, both parents have an equal right to the custody of their children. If you and your spouse can't agree on a custody arrangement, the court will look at the best interests of your children in determining where they should live after the divorce. There are many factors that go into this determination, and much will depend on the individual facts of your case.
What factors will the court consider in deciding custody?
Most states have statutes that set out the factors a court must look at when deciding custody issues. In Alabama, however, these factors are set out in court cases. The factors a court may consider include, among other things:
- the child's age and gender
- the child's needs
- the age, character, stability, health, capacity, and interest of each parent in meeting the child's needs
- the relationship between the child and each parent
- the home environment each parent can offer, and
- the child's preference, if the child is of sufficient age and maturity to offer one.
How does joint custody work?
Under Alabama law, the court must presume that it is in the best interests of the child to have continuing and frequent contact with both parents. If parents are granted joint legal custody, it means they share the right to make important decisions about their children, such as where the child will go to school, whether the child will be raised in a particular religion, and so on.
If the parents share joint physical custody, it means the children will reside with each parent part of the time. However, it doesn't necessarily mean the children will spend exactly half the year with each parent.
Does the court always award joint custody?
No. If one parent has committed serious misconduct (for example, domestic abuse), the court is likely to award the other parent sole custody. Even if neither parent has engaged in this kind of extreme behavior, the court must consider whether joint custody will work, as a practical matter. The court will look at:
- whether the parents agree that joint custody is the best arrangement
- whether the parents have shown that they are able to cooperate and work together
- whether each parent is able and willing to foster a positive relationship between the child and the other parent
- any history of inappropriate behavior by either parent, and
- the physical proximity of the parents' homes.
Will the Court appoint a lawyer to represent my children in the divorce? If so, who pays that lawyer?
If the rights or interests of your children are in contention, the court may determine that it is in their best interests to have an attorney appointed to represent them. This attorney is known as a guardian ad litem (GAL). The GAL is appointed by the judge to represent the interests of your children only. Typically, you and your spouse will have to pay the GAL's fee. A GAL is not necessary in every case involving children, only under certain circumstances when the rights or interests of the children are an issue in the case.
At what age can my children decide where they want to live?
Under Alabama law, the court always makes the decision regarding the custody of children. The Court may hear testimony from a child regarding that child's wishes, but the court ultimately decides the issue. The child doesn't get to choose where to live.
If my spouse fails to pay child support, do I have to allow visitation?
Yes. Alabama courts treat support and visitation issues separately. Violation of either can subject a party to contempt of court.
If my spouse will not allow me to see my children, do I have to pay support?
Yes. You may seek to enforce the visitation order through a contempt of court proceeding, but you still have to pay your child support.