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 what their parents' visitation schedule should look like. 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.
When parents can’t agree on child custody, a judge will decide. In Alabama, the court must give custody of children to either the mother or father when they separate. Judges base their decisions on the child’s best interests, including the child’s safety and well-being. When determining custody, Alabama judges must consider all of the following factors:
Np particular factors have more weight than others and judges are given wide discretion in making custody decisions. To read more information about custody decisions in Alabama, see Child Custody in Alabama: The Best Interests of the Child.
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 it's weight heavily. 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 his or her preference. For example, if a child is simply angry with one parent for disciplining him or her, 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 his or her educational needs, the court is likely to give the child’s selection a lot of weight.
The court can also consider one 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 to be separated from his siblings.
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.
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 conversation be recorded.
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 for help.