How Domestic Violence Affects Child Custody in Alabama

Learn more about how domestic violence impacts child custody decisions in Alabama.

By , J.D. · University of Minnesota School of Law
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Domestic violence is an act that, like skipping stones into a pond, leaves ripples in its wake. But what's left behind isn't puddles of water; it's emotional turmoil and legal problems. In the case of parents, domestic violence may also affect who is awarded custody.

This article will explain what domestic violence is and how it affects child custody in Alabama. If you have any questions after you read this article, consult with a family law attorney for advice.

Domestic Violence Overview

Too many people who have been victims of domestic violence convince themselves that they weren't really abused. One of the most common mistakes they make is thinking that just because an abuser didn't strike or physically wound them, there was just a "disagreement" and not abuse. That's why it's so important to understand how the law defines domestic violence in Alabama, which includes:

  • abuse
  • stalking
  • assault
  • harassment, or
  • threats.

"Abuse" can take many forms. Not only can it be physical, but it can be emotional, mental, or economic (meaning, one partner controls all the money and doesn't allow the other partner to access it). Abusers can isolate their victims from family and friends and make threats to frighten or intimidate their partners.

Domestic violence also covers the gamut of violent behavior, including arson, attempts at violence, child abuse, "coercion" (using force or threats of force to make someone do something), trespassing, kidnapping, menacing, sexual abuse, theft, and even unlawful imprisonment (trapping people against their will).

Another reason that people sometimes don't get help is that they think they don't have a close enough relationship to their abuser and the law won't protect them. In Alabama, anyone who has one of the following relationships and is at least 18 years old, is or has been married, or is an emancipated child, qualifies for protection from domestic abuse:

  • the victim is currently related by marriage to the abuser, including a current common law marriage
  • the victim had a former marriage or former common law marriage with the abuser
  • the victim and abuser have a child in common
  • the victim and abuser have a dating relationship, or
  • the victim is a current or former household member, meaning a person who lives or lived with the abuser as part of a romantic or sexual relationship.

"Dating relationship" is defined as a recent, frequent, intimate social relationship that is characterized by an expectation of affection or sexual involvement within the last six months. Dating relationships don't include casual or business relationships.

If you're a victim of domestic violence, you can go to court and ask for a domestic abuse protection order to protect you. To learn more, see this information, including court forms, from Alabama Legal Help, which is a legal aid organization for low-income people.

Community Resources

Like other states, Alabama has organizations staffed by dedicated people who have devoted their time to helping victims of domestic violence.

The House of Ruth can be reached 24 hours a day at 1-800-650-6522 and provides in-shelter and out-of-shelter services, including safe lodging, basic necessities, group and individual counseling, and case planning.

The YMCA of Central Alabama (call 24 hours a day at 205-322-4878) and Crisis Services of North Alabama (call 256-716-1000) provide similar services to help victims.

The University of Alabama School of Law also runs a domestic violence law clinic that represents victims in civil (meaning, not criminal) court proceedings and links them to resources.

Finally, victims can always call the National Domestic Violence Hotline at 1-800799-7233. It's available 24 hours a day, seven days a week.

Domestic Abuse and Child Custody

When a custody dispute comes up, courts have to decide how to divide the two types of custody: physical and legal.Physical custody (meaning, where the children will live) often goes to the parent who spends more time with the children and provides them with most of their daily care. The parent without physical custody is awarded visitation per a regular schedule. Legal custody is more abstract and simply refers to a parent's right to make major decisions for a child, like where the child should go to school or whether the child should undergo medical treatments. In most cases where there's been no abuse and parents are able to cooperate, both parents have joint (shared) legal custody.

Alabama custody law is broad and allows judges to make decisions for children that ensure their safety and well-being. For more information about how courts make these decisions, see Child Custody in Alabama: The Best Interests of the Child by Susan Bishop.

Domestic violence has a critical impact on Alabama custody proceeding. An abusive parent has a diminished chance of getting custody. If another court has already ruled that a parent committed acts of domestic of family violence or granted a protection order, then the judge hearing the custody case later on must apply a "rebuttable presumption" (a legal presumption that can only be overcome by enough evidence) that it's in the child's best interests to live with the parent who was the victim. Unless it's overcome, the rebuttable presumption even assumes that the child can live in a location of the victim parent's choice, which can be in Alabama or in another state.

The rebuttable presumption means that unless the abusive parent proves otherwise, the court will find that it's in the best interests of the child for the perpetrator parent not to have sole custody, joint legal custody, or joint physical custody of any kind. The judge still, however, has to take into account what impact the domestic violence has had on the child.

If there's been domestic violence in the parents' relationship, or in their relationships with other people, the court has to consider three additional factors when making a decision about custody or parenting time:

  • the safety and well-being of a child and of the parent who is the victim of family or domestic violence,
  • the perpetrator's history of causing physical harm, bodily injury, assault, or reasonable fear of the same to another person, and
  • if a victim parent flees or relocates because the other parent was abusive, the judge can't hold the relocation against the victim parent.

Impact on Visitation

Domestic violence also has a major effect on the abusive parent's ability to visit with a child. The court can only award visitation to an abuser if the safety of the child and victim parent are protected. Therefore, the judge can choose from the following options:

  • ordering visitation exchanges to occur in safe settings, like police stations or fire departments
  • ordering supervised visitation, where another responsible adult monitors the visit
  • ordering the perpetrator to attend and complete parenting and domestic violence counseling and classes as a condition of visitation
  • ordering the perpetrator not to consume or possess alcohol or drugs during visits or for 24 hours beforehand
  • prohibiting overnight visits
  • requiring the perpetrator to pay a bond to the court to ensure the child's safe return, and
  • imposing any other condition the judge thinks is necessary to keep the child and the other parent safe.

The court is legally obligated to keep the address of the child and the victim parent strictly confidential, and also has the option to refer, but not order, the victim parent to attend counseling.

Termination of Parental Rights

The termination of parental rights occurs when a judges permanently terminates a parent's rights to physical and legal custody of his or her child. This is fairly rare as judges only impose this in most extreme circumstances, for example, where a parent has severely abused or sexually assaulted his or her child or the child's other parent.

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