The term “custody” is two-tiered. On the first tier are “legal” custody and “physical” custody. Legal custody refers to who will be making important decisions relating to raising the child, like education choices, religious upbringing, and non-emergency medical care. Physical custody refers to where the child is going to reside.
The second tier takes the terms legal custody and physical custody and breaks each of them down into “sole” custody and “joint” custody. If a court grants a parent sole legal custody, it means that parent alone has the decision-making authority. With joint legal custody, both parents have a say in child-rearing decisions.
Sole physical custody means the child will reside with one parent, and the other may have visitation. In a joint physical custody scenario, the child resides with each parent for specific periods, which could range from a few days a week to perhaps months at a time.
The concept of “the best interests of the child” is the controlling element in a judge’s award of custody. There are several factors a judge will look at when determining a child’s best interest. Some of these are:
Note that a court can also consider a child’s preference, but only if the court finds the child is of sufficient age and maturity. As a general rule, the older the child, the more weight a judge will give to that child’s wishes.
In addressing the various aspects of custody, Alabama law favors joint legal custody as the preferred outcome. That’s because it usually leads to children having frequent and continuing contact with their parents and enables parents to share the rights and responsibilities of raising their children. (Ala. Code § 30-3-150.)
The court must consider the potential for joint legal custody in every case and can award it even if the parents don’t consent to it. (Ala. Code § 30-3-152 (b).) If both parents request joint custody, the law presumes that this would be in the child’s best interest. (Ala. Code § 30-3-152 (c).) In that case, the court must order it, unless the judge makes specific findings as to why joint custody isn’t best for the children. If the court doesn’t believe joint custody would be appropriate, it will create a custody plan that is in the children’s best interest.
Regarding physical custody, one of the factors a judge will consider is how far the parents live from each other. (Ala. Code § 30-3-152 (a)(5).) If it’s a substantial distance, the judge may conclude that joint physical custody might not be beneficial to the child. You might see this in situations where moving back and forth between residences could negatively impact the child’s education, or interfere with social activities, such as music lessons or sports.
In Alabama, there is a specific provision in the custody law that states that if the wife has abandoned the husband, the husband will have custody of the child after the child reaches the age of seven. The law conditions the custody decision on a judge finding that the husband is a “suitable person” to have custody. (Ala. Code § 30-3-1.)
In 2015, the United States Supreme Court (USSC) issued a ruling requiring all states to legalize same-sex marriage. The law regarding a wife abandoning a husband in Alabama has not changed, and there is no guidance at this time as to how this law relates to same-sex marriages. If you’re contemplating a divorce and your same-sex spouse abandoned you and your children, speak with an experienced family law attorney before you file.
Alabama law also states that if the court determines a parent has committed domestic or family violence, there’s a presumption that giving that parent any form of custody wouldn’t be in the child’s best interest. The law defines domestic or family abuse as “an incident resulting in the abuse, stalking, assault, harassment, or the attempt or threats of the same.” (Ala. Code § 30-3-130.)
However, the presumption is “rebuttable,” meaning the court could give custody to that parent if the parent proves that receiving custody wouldn’t be detrimental to the child. (Ala. Code §30-3-133.)
The prevailing view in divorce law today is that both parents should be involved in a child’s life. So when a child is residing with one parent, the court normally grants the other parent visitation rights (also called “parenting time”). The determination of a visitation schedule will often depend on the circumstances of each case, but the controlling factor is the child’s best interest.
When both parents live in Alabama, you might find that county courts can mandate a minimum visitation schedule, such as this one from Morgan County. When one of the parents resides out-of-state, setting a schedule can be more complicated. In these situations, you’ll usually see longer visitation periods but scattered over the course of the year (for example, extended visitation during the summer, or at winter or spring break).
Unfortunately, there are times when a child’s safety is compromised when visiting with a parent. For example, if the visiting parent has a history of domestic violence or child abuse issues, or perhaps a parent’s untreated alcohol or drug addiction, the court must take steps to ensure visitation is appropriate and safe for the child. In these situations, a judge will likely order “supervised” visitation to ensure the child’s safety (and the other parent’s safety, as well). Supervised visitation must take place in the presence of a third party, and sometimes that means visitation will be at a facility run by a state-sanctioned agency. (Ala. Code § 30-3-135.) However, if the potential for harm is minimal, the court might permit a trusted family member or friend to oversee the visits. (Ala. Code § 30-3-135 (e).)
In some cases, the court may allow unsupervised visitation. Still, it might be appropriate or the court to impose other restrictions, such as requiring a bond from the visiting parent, denying overnight visits, or ordering the parent to abstain from alcohol or drug use before and during the visitation.
Custody and visitation can be complex issues. If you have questions, you should contact a local custody attorney for advice.
To read the full custody and visitation statutes, review the Alabama Code, Title 30, Chapter 3.