When a couple with children divorces in Alabama, the issue most likely foremost in each of the spouse's minds is who will have custody of their children. Like other states, Alabama law places the best interests of the child front and center in all matters related to child custody.
Alabama law states that when a state court judge grants a divorce, "custody and education" of the children may go to either parent considering what is "right and proper," "moral character and prudence" and the kids' ages and genders.
Aspects of custody
Consistently with other states, Alabama recognizes two types of child custody and that each can be held by either or both parents:
- Joint legal custody wherein the parents share equally in making major life decisions for the child like those related to medical care, education, religion and more. The judge may assign particular decisions to one or the other parent, however.
- Joint physical custody that divides the child's time between the parents, not necessarily equally, but so that each has "frequent and substantial contact."
- Sole legal custody wherein only one parent makes major decisions.
- Sole physical custody that grants physical care of the child to one parent, with the other having visitation rights, unless the court orders otherwise.
Some divorcing parents may be able to negotiate custody decisions as part of an overall marital settlement agreement, but if they cannot agree, an Alabama judge will have to make the decision.
Alabama courts may consider any relevant factor in deciding what kind of custody arrangement is in the child's best interest, but certain factors have been identified by the state courts as important, including:
- Relationships between the child and its parents, and between siblings
- Ability and motivation of each parent to provide for the needs of the child
- Home setting of each parent
- Child's age and gender
- Child's specific needs such as physical, educational, emotional and more
- Parental attributes like character, age, health and more
- Impact of continuing or stopping the current custody arrangement
- Child's preference, if he or she is able to understand and express it
- Expert recommendations
- And more
Joint custody favored
Alabama statute specifically sets out a preference for joint custody so long as each parent is able to "act in the best interest" of the children. If both parents request joint custody, the judge shall order it unless he or she specifically lays out the reasons for not granting it. Alabama law sets out specific factors the judge must consider in deciding if joint custody is in a child's best interest.
Alabama statute directs that in a custody proceeding wherein the judge finds a history of "domestic or family violence," the court must presume that any kind of custody arrangement that would include a parent who perpetrated the violence would be a detriment to the child and not in his or her best interest. This presumption may be rebutted by other evidence, however. The judge is directed by law to consider the impact of the family violence on the child in making custody decisions.
This article just introduces Alabama child custody law, which is complex. Any Alabamian facing a child custody dispute should seek the advice and counsel of an experienced Alabama family lawyer.