What is Sole Custody? Understanding the Basics.

by Alison Herlihy | Aug 19, 2024 | Alabama, Children, Custody, Divorce, Family Law

What is Sole Custody? Understanding the Basics.

1. Understanding Sole Custody

There are two types of custody: legal custody and physical custody. Legal custody refers to the parents’ rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. Physical custody who the child physically lives with.

2. Sole Custody vs Full Custody: Explained

“Full” custody is a very common term that we hear from clients; however, it is not a legal term under Alabama Law and can mean different things to different people. Alabama law differentiates between sole custody and joint custody, including sole versus joint legal custody and sole versus joint physical custody. It is important to know and understand the correct terminology when you are going into a divorce or custody case so you can fully understand the different options and their implications.

3. What Sole Custody Means for Parents

Sole Legal Custody means that one parent has sole rights and responsibilities to make major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. It would be very unusual for Sole Legal Custody to be awarded in a modern court order, absent extreme circumstances such as the other parent being very dangerous.

Joint Legal Custody is fairly standard and what you would expect to see in most court orders today involving custody of children. Joint legal custody means that both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions. Ideally, you are supposedly collaborate with the other parent and make joint decisions whenever possible.

Sole Physical Custody means that one parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court.

Joint Physical Custody means that physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent. Per the Alabama statute, joint physical custody does not necessarily mean physical custody of equal durations of time; however, the vast majority of the time, a court order that provides for joint physical custody means equal, 50/50 shared custody often on an alternating-week basis.

4. Decoding Sole Custody: Implications for Parents

Sole legal custody means that the parent who has it gets to make all the decisions about where the children go to school, where and when they go the doctor, etc. They do not have to involve the other parent in any of these decisions at all. Again, it would be a very rare and unusual circumstance that this would be ordered. It would typically only be in a situation where the other parent is completely absent or poses a very serious danger to the child.

Sole physical custody is much less extreme in reality even though the terminology does not sound great. As stated above, sole physical custody means that is who the child lives with the majority of the time.

5. Sole Physical Custody: Breaking it Down

Sole physical custody is the parent who the child lives with most of the time. It is the child’s home base, so to speak. The other parent will be awarded visitation. A typical visitation schedule will include alternate weekends, mid-week visitation, and a division of holidays and summer vacation. Parent are also free to deviate from the court-ordered visitation schedule if they both agree to do so.

If the visiting parent is not a fit parent to have the typical visitation schedule, the court can order restrictions on their visitation such as making it daytime-only or requiring drug or alcohol testing.

6. The Impact of Sole Custody on the Other Parent

Sole legal custody one parent has a lot of control over the children’s lives and what happens with them. That parent can choose to use their power to coparent effectively and facilitate a good relationship between the children and the other parent. If the other parent is a decent person and parent, this is going to be in the best interests of the children in the long run. Conversely, the parent with sole custody can choose to use their power to prevent the other parent from being involved in the children’s lives, such as not telling them about doctor’s appointments or school events and refusing to list them as a parent on paperwork involving the children. I would never recommend that a parent agree to give the other parent sole legal custody, absent very extreme and unusual circumstances.

If you have joint legal custody and the parent with physical custody tries to keep you out of the children’s lives in those ways, your joint legal custody gives you the power to go around them if necessary and get information and access directly through the school, medical providers etc. This is really important, especially if you and the other parent to do not get along.

Sole physical custody also means that the parent with custody only has to allow the visiting parent the visitation schedule that is in the court order. They can choose to allow extra visitation, but they do not have to. If you spouse presents you with a divorce or custody agreement they want you to sign, and they tell you don’t worry about what the schedule in the paperwork says, you need to proceed with extreme caution. If they make promises that they will allow more visitation, you have to keep in mind that they do not have to do anything that is not written down in the paperwork. It is possible they are well-intentioned, but it is also possible they are just trying to induce you into signing the papers by making promises they do not intend to keep. It is best for the visiting parent to have all their rights specifically written down in the divorce or custody order.

And of course, it is always best to get legal advice before you sign any kind of binding legal agreement to make sure that your rights are protected. You can call our office or click “request a consultation” here on our website to schedule an appointment with one of our divorce and family law attorneys.

Author: Alison Herlihy

Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.

Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.

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4 Things to Consider When Choosing a Contested Divorce Lawyer

by Alison Herlihy | Jun 27, 2024 | Divorce, Family Law

4 Things to Consider When Choosing a Contested Divorce Lawyer

1. Are they experienced in divorce law?

When I started practicing law in 2005, it was common for solo practitioners and small law firms to be “threshold lawyers,” as in, they took any case that came across the threshold of the front door of their office!

That might mean they handle a little bit of criminal law, probate, termite claims, car wrecks, real estate disputes, small business litigation, debt collection, bankruptcy, and, yes, divorce. Have you ever heard the expression “jack of all trades but master of none?” It is really hard to be truly excellent or even proficient in that many areas of law.

That is why we here at Herlihy Family Law focus our practice exclusively on divorce and other family law matters.

Many decades ago, Alabama was known as a place you could get a so-called quickie divorce. Your lawyer could type up a very basic agreement and carry it personally to the judge the same day!

Those days are long over, and divorce is much more complex than it used to be. Your lawyer must be well-versed in both statutes and case authority that apply to alimony, child support calculation and modification, different types of child custody and its modification, division of retirement plans and other assets, how domestic violence and other types of fault can impact and outcome of your case, and more.

Your divorce lawyer needs to know how your divorce case may interact with other parts of the legal system, such as criminal law or bankruptcy, if those issues apply to you.

Not only does your lawyer need to be well-versed in the law, they need to be familiar with the judges that will hear your case so they can make strategic decisions on what evidence to present, what relief you might be able to obtain, and whether it is advisable to settle or try your case. If your lawyer handles one or two divorces a year, they are not going to be in a good position to do that.

2. What are their communication practices?

Lawyer have an ethical duty to adequately communicate with their clients. I am currently serving my second term on the Mobile Bar Association’s grievance committee, and I would say that poor communication is involved with the majority of ethics complaints that we see filed against lawyers.

When you have an initial consultation with your possible divorce lawyer, ask these questions:

How will your office send me copies of motions and court orders in my case?

Believe it or not, some lawyers still mail everything, which means you will not find out about an important development in your case until a week after it happens. If there is a safety issue or something else emergent going on in your divorce, you need to know as soon as possible.

Who in their office are you supposed to communicate with and about what?

If you have questions on how to provide copies of documents or you need to verify when your court date is, those are the types of questions that are handled by paralegals or other support staff. In the long run, it is going to save you a lot of money if your lawyer is not answering those types of questions themselves.

When it comes to substantive and strategic decisions, such as whether to accept a settlement offer, those are the types of matters you need to discuss with your divorce lawyer. If you ask to communicate with or meet with your lawyer about something substantive like that, and you are not allowed to schedule a meeting with your lawyer, that is a red flag.

How will your office communicate with me?

All legal representation is confidential, but divorce cases frequently involve especially sensitive information and confidential records. You want to make sure that your lawyer is safeguarding all information that is relayed between you and their office.

At Herlihy Family Law, we send and receive communications and records from you and to you via a secure messaging portal, much like you may have seen at your doctor’s office. Anytime you need to discuss something more complicated, you can always schedule a call or an in-person appointment.

We want to make sure your concerns are heard, your information is safe, and you have the access you need to your legal team.

3. Are the billing processes transparent?

You want to make sure that your divorce lawyer’s retainer agreement clearly explains their billing processes to you on the front end. If there is no written retainer agreement or employment contract, you should be very concerned.

If your divorce lawyer has you pay them thousands of dollars and never tells you where it is going, or how much more your case might cost, you should be very concerned.

At Herlihy Family Law, we bill the majority of our cases on an hourly basis. Every month you will get an itemized bill showing how much of your retainer fee has been used and how much is left. You know exactly how your money is being sent, so you can ask any questions you might have as you go.

4) Do they have your best interests in mind?

Your divorce lawyer (hopefully) has knowledge and experience in divorce law that you do not have, so you should certainly give their opinion and advice serious weight and consideration.

That being said, this is your life! All final decisions on substantive matters in the case (i.e whether to settle or try your case) are your decisions, and your lawyer should honor that. If you feel they are pressuring you to do things you do not feel right about, that is not a good sign.

If they will not answer your questions and just pat you on the head and tell you to let them handle it, that is not a good sign either. If you and your spouse have a good relationship and you have reached an agreement that is well-informed and fair, but your lawyer tries to force you to take your case to trial so they can charge you more money, that is not a good sign either.

You need to feel confident that your divorce lawyer is working to promote your best interests and not out of their own agenda or some other motivation.

At Herlihy Family Law we strive to provide all of the above and more with honesty, advocacy, and service to all of our clients. If you are in need of a divorce consultation, call our office or request a meeting via our website.

Divorce is one of the toughest life experiences out there, and we are here for you.

Author: Alison Herlihy

Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.

Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.

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How Does Alimony Work? An Essential Guide for Understanding Alimony Laws

by Alison Herlihy | Jun 6, 2024 | Alabama, Child Support, Children, Divorce

How Does Alimony Work? An Essential Guide for Understanding Alimony Laws

Alimony comes down to two basic pieces of information – need and ability to pay. After the need and ability to pay have been established, the court will consider other important factors such as the length of the marriage and fault. Just because the parties have been married a long time or one spouse makes a lot of money, does not automatically mean there will be alimony. While fault, such as infidelity, can be considered by the Court, fault does not automatically mean there will be alimony ordered in any given divorce either.

Alabama Law and Alimony

In Alabama, Alimony is governed by Alabama Code 30-2-57, the entire text of which is stated below. The divorce court is required to make a multiple-part analysis and issue an order containing specific findings of fact stating why alimony was ordered pursuant to the statute. If the Judgment of Divorce fails to contain those findings, it can be reversed by the Court of Civil Appeals.

The first key factors are the need and ability to pay. Both of these must be present for a court to award alimony in a divorce. If the need and ability to pay are both present, the award of alimony must still be fair considering the overall totality of the circumstances of that specific case.

The key factors a Court will consider that relate to the potential receiving spouse’s need would be any separate assets of that spouse, what assets they are receiving in the divorce, and what the lifestyle of the parties was like during the marriage. The court will also consider their own ability to earn, which considers their employment history, educational background, age, physical health, and other factors. The court must find that the receiving spouse cannot support themselves, through earnings, assets, or a combination, without receiving support from the other spouse, in order to award alimony.

If the Court determines that the requisite need does exist, then the Court must consider the paying spouse’s ability to pay. The ability to pay means that the paying spouse must be able to financially provide the support without incurring undue financial hardship themselves. In determining ability to pay, the Court will consider the paying spouse’s earnings, or ability to earn, their assets, and the amount of any obligations they will be required to pay in the divorce, including marital debts and child support.

Once the need and ability to pay have been established, the next key factor is the length of the marriage. According to the alimony statute, the Court cannot order periodic (or permanent) alimony in a divorce, absent extraordinary circumstances, unless the parties have been married over 20 years. If the parties have been married less than 20 years, it is presumed that any alimony would be rehabilitative alimony, which is limited to a time certain and designed to help the receiving spouse get back on their feet and eventually be self-supporting after the divorce. It is also presumed that rehabilitative alimony should not exceed five years. In any marriage less than 20 years, alimony should also not be awarded for a period longer than the marriage, absent extraordinary circumstances.

If alimony is at issue in your divorce, it is important that you have an experienced lawyer who can help you navigate the potentially complex legal analysis involved when a Court considers awarding alimony in a divorce.

30-2-57. Rehabilitative or periodic alimony

(a) Upon granting a divorce or legal separation, the court shall award either rehabilitative or periodic alimony as provided in subsection (b), if the court expressly finds all of the following:

(1) A party lacks a separate estate or his or her separate estate is insufficient to enable the party to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage.

(2) The other party has the ability to supply those means without undue economic hardship.

(3) The circumstances of the case make it equitable.

(b) If a party has met the requirements of subsection (a), the court shall award alimony in the following priority:

(1) Unless the court expressly finds that rehabilitative alimony is not feasible, the court shall award rehabilitative alimony to the party for a limited duration, not to exceed five years, absent extraordinary circumstances, of an amount to enable the party to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage.

(2) In cases in which the court expressly finds that rehabilitation is not feasible, a good-faith attempt at rehabilitation fails, or good-faith rehabilitation only enables the party to partially acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, the court shall award the party periodic installments of alimony for a duration and an amount to allow the party to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage as provided in subsection (g).

(c) In cases in which a party has proven a lack of means to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, but there exists a present inability of the other party to supply those means, a court, when the circumstances of the case make it equitable, shall reserve jurisdiction to award rehabilitative or periodic alimony. If there is neither an award of alimony nor a reservation of jurisdiction at the time of the divorce, the court shall permanently lose jurisdiction to subsequently make an award of rehabilitative or periodic alimony.

(d) In determining whether a party has a sufficient separate estate to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, the court shall consider any and all relevant evidence, including all of the following:

(1) The party’s own individual assets.

(2) The marital property received by or awarded to the party.

(3) The liabilities of the party following the distribution of marital property.

(4) The party’s own wage-earning capacity, taking into account the age, health, education, and work experience of the party as well as the prevailing economic conditions.

(5) Any benefits that will assist the party in obtaining and maintaining gainful employment.

(6) That the party has primary physical custody of a child of the marriage whose condition or circumstances make it appropriate that the party not be required to seek employment outside the home.

(7) Any other factor the court deems equitable under the circumstances of the case.

(e) In determining whether the other party has the ability to pay alimony, the court shall consider any and all evidence, including all of the following:

(1) His or her own individual assets, except those assets protected from use for the payment of alimony by federal law.

(2) The marital property received by or awarded to him or her.

(3) His or her liabilities following the distribution of marital property.

(4) His or her net income.

(5) His or her wage-earning ability, considering his or her age, health, education, professional licensing, work history, family commitments, and prevailing economic conditions.

(6) That he or she has primary physical custody of a child of the marriage whose condition or circumstances make it appropriate that he or she not be required to maintain employment outside the home.

(7) Any other factor the court deems equitable under the circumstances of the case.

(f) In determining whether the award of rehabilitative or periodic alimony is equitable, the court shall consider all relevant factors including all of the following:

(1) The length of the marriage.

(2) The standard of living to which the parties became accustomed during the marriage.

(3) The relative fault of the parties for the breakdown of the marriage.

(4) The age and health of the parties.

(5) The future employment prospects of the parties.

(6) The contribution of the one party to the education or earning ability of the other party.

(7) The extent to which one party reduced his or her income or career opportunities for the benefit of the other party or the family.

(8) Excessive or abnormal expenditures, destruction, concealment, or fraudulent disposition of property.

(9) All actual damages and judgments from conduct resulting in criminal conviction of either spouse in which the other spouse or child of the marriage was the victim.

(10) Any other factor the court deems equitable under the circumstances of the case.

(g) Except upon a finding by the court that a deviation from the time limits of this section is equitably required, a person shall be eligible for periodic alimony for a period not to exceed the length of the marriage, as of the date of the filing of the complaint, with the exception that if a party is married for 20 years or longer, there shall be no time limit as to his or her eligibility.

(h) An order awarding rehabilitative or periodic alimony may be modified based upon application and a showing of material change in circumstances.

(i) Rehabilitative or periodic alimony awarded under this section terminates as provided in Section 30-2-55, or upon the death of either spouse.

Ala. Code 30-2-57 Rehabilitative or periodic alimony (Code Of Alabama (2024 Edition))

Author: Alison Herlihy

Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.

Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.

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What to Do Immediately After Divorce: 7 Essential Steps to Take

by Alison Herlihy | Apr 8, 2024 | Alabama, Divorce, Significant Decisions

What to Do Immediately After Divorce: 7 Essential Steps to Take

Going through a divorce often leaves people with a lot of questions and uncertainty. One of the first things you might be wondering is what to do immediately after divorce.

Divorce is one of the hardest things you can experience in life. Research has shown that it ranks second only to the death of a loved one in terms of traumatic life events. Given this information, it is no surprise that you might feel grief, depression, confusion, and loss after your divorce.

Here at Herlihy Family Law, we think of divorce as not merely an ending, but a new beginning, a fresh start. Your divorce can be your opportunity to write new chapter in your life.

1. Rebuilding Your Life

How do you rebuild your life after a divorce? First of all, consider it an opportunity to start over without all the conflict and strife that led you to divorce in the first place. You can create your life in your own image – that is an opportunity!

Take an inventory of the resources you have from your divorce, so you can know what you have and what you need to start over. You have a lot of big decisions to make, from where to live to how to raise your children in this new family dynamic.

Consider what your priorities are and make choices that will help you meet your goals and generate long-term happiness and well-being in your life.

2. Taking Care of Yourself

Like they say on airplanes, put your oxygen mask on yourself before trying to assist others. You need to not only survive but thrive to be the best person and parent you can be (if you have children).

You have been through a lot, and it is important to give yourself the time and space you need to emotionally recover from your divorce. Get plenty of rest, and maybe even take a vacation. Adopt other self-care strategies such as meditation, spending time outside, exercise, or journaling.

Avoid negative coping mechanisms such as alcohol, drugs, junk food, shopping, or rushing into a new relationship when you are not ready. Try to think about not what might feel good right this second, but what will make you feel good tomorrow, next week, or next year.

3. Establishing a Support Network

Divorce may make you feel alone, but if you turn to your left and your right, odds are, you will see someone else who has been divorced and understands what you are going through.

Family and friends can be a great support system, but on the off chance that the people in your immediate network have not experienced divorce, there are plenty of support groups in person and online full of people who have gone through a divorce just like you.

When you are looking for your support network after your divorce, look for people who are ready, willing, and able to listen and be empathetic, but not try to “fix” you – you aren’t broken, you are just divorced.

4. Handling Financial Matters

If you have received a financial settlement from your divorce, you need to make a plan for your assets that will provide long-term security. Many people who get divorced end up with half the equity in their marital home.

Typically, you would use those funds as a down payment on your new home. Today, mortgage interest rates are very high, so you may decide that it is not the best time to buy and you want to invest the money instead.

You might also receive a portion of your spouse’s retirement account. It is important to understand that, if you are under age 59 ½ , you cannot receive retirement funds as cash without paying substantial taxes and penalties. Thinking long term, you likely want to plan to roll any retirement funds you receive in your divorce over to an Individual Retirement Account because you can do so without taxes and penalties.

Speaking of taxes, you will have a new tax filing status after your divorce. You can only file income tax returns as “married” if you were still married on December 31st of that tax year. After your divorce, you can file as single or possibly as head of household if you have minor children who live with you.

If you are employed, you will need to contact your payroll department to make sure they are withholding the correct amount of taxes from your paycheck due to your new status.

You will also need to go through the process of separating any joint bills such as utilities, car insurance, and cellphones once you are divorced.

5. Co-Parenting Strategies

Figuring out co-parenting can be one of the most challenging aspects of life after divorce. It is best for your children if you and your former spouse can cooperate and work together to make mutual decisions that benefit your children and serve their best interests. \

Parents who continue to constantly fight and argue after divorce are often referred to as “high conflict.” There is a huge amount of research that shows that children of “high conflict” parents suffer poor outcomes throughout their life, including higher instances of depression and anxiety, difficulty in relationships throughout their life, and they are even less likely to go to college. You obviously do not want any of that!

Children of divorce will thrive every bit as much as children of intact marriages, if their parents can find a way to avoid high conflict and co-parent effectively after divorce.

6. Seeking Professional Help

If you are not sure how to navigate all the changes that follow a divorce, it is time to seek professional help. Your divorce lawyer can be a tremendous resource in exploring your options and referring you to other professionals, provided your divorce lawyer is very experienced in divorce.

If you feel lost in making financial decisions, you can contact a Certified Public Accountant (CPA) or a financial planner or advisor. They can help you figure out your taxes and make smart decisions on how to invest your money and save for the future.

If you are struggling with your own emotions following your divorce, seek the help of an individual therapist. Therapists are professionals who are skilled in helping guide people through challenging times. There is no shame in seeking help if you need it!

Your children may need individual therapy as well if they are struggling to adjust to the major changes that come with divorce.

If your challenge revolves around co-parenting, finding a therapist who specializes in family counseling and/or co-parenting would be a good fit for your situation.

7. Embracing the Future

Above all else, divorce is a fresh start. Divorce is an opportunity to embrace a new future – one that you create in service of your own goals, dreams, and values.

If you are going through a divorce and wondering what to do immediately after divorce, use these steps as your guide. If you have any questions about divorce and navigating your post-divorce life and you want a divorce attorney who can help you not only with your divorce but also provide a post-divorce checklist to get you on the right track, reach out to our team.

Author: Alison Herlihy

Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.

Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.

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8 Different Types of Child Custody Explained

by Alison Herlihy | Mar 7, 2024 | Children, Custody, Divorce, Family, Family Law

8 Different Types of Child Custody Explained

When it comes to getting divorced with children involved, most people don’t realize there are several types of child custody arrangements. In this article, we will explain eight different types of child custody.

1. Legal Custody: Making Decisions for the Child’s Future

Legal Custody means the power to make major decisions regarding your child’s future and welfare. In Alabama, parents can have sole legal custody or joint legal custody.

Alabama Code defines sole legal custody as “One parent has sole rights and responsibilities to make major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training.” Ala. Code 30-3-151 Definitions (Code Of Alabama (2024 Edition))

Alabama Code defines joint legal custody as:

Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training.

The court may designate one parent to have the sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.

Ala. Code 30-3-151 Definitions (Code Of Alabama (2024 Edition))

Joint legal custody is the most typical form of legal custody that we see here in Mobile and Baldwin Counties in divorce and other custody orders. When parents have joint legal custody, they are expected to work together to try to make joint decisions about the child on matters such as education, extra-curricular activities, health care, and religion, whenever possible.

Typically, the parent who has physical custody ends up having the final say on major decisions, or the court may designate one parent or the other as a tiebreaker decisionmaker over particular decisions.

2. Physical Custody: Understanding Where the Child Resides

Physical custody is where the child resides. As discussed above, the parent with physical custody ends up having the final say on major decisions regarding the child most of the time, unless otherwise specified.

The terms “primary physical custody” or “primary custody” are terms that have also been used interchangeably with physical custody, but they are not terms that are listed in the Alabama Code.

3. Sole Physical Custody: What It Means for Parents

The Alabama Code defines Sole Physical Custody as “One parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court.” Ala. Code 30-3-151 Definitions (Code Of Alabama (2024 Edition)).

In a typical sole physical custody arrangement, the children will live with one parent most of the time and have visitation with the other parent, including alternate weekends and one night of mid-week visitation each week.

4. Joint Physical Custody: Collaborative Parenting Solutions

Joint Physical Custody is defined by Alabama Code as “Physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent.

Joint physical custody does not necessarily mean physical custody of equal durations of time.” Ala. Code 30-3-151 Definitions (Code Of Alabama (2024 Edition)).

While joint custody is does not necessarily mean equal amounts of time with each parent, in practice, it typically does mean equal amounts of time with each parent.

The most common joint custody arrangement seen in Mobile and Baldwin County, Alabama is alternating weeks of custody, changing the children either on Fridays or Sundays.

Another arrangement families with younger children sometimes use is known as a “2-2-5” schedule. An example would be that Mom has the children Mondays and Tuesdays, Dad has the children Wednesdays and Thursdays, and the parents alternate weekends.

This means the children never have to go an entire week without seeing their other parent.

5. Joint Custody: Balancing Time and Responsibilities

Joint Custody is defined under Alabama Code as both joint legal and physical custody. Joint custody can be very successful, but there are a lot of factors that go into making joint custody a success or not.

First, how will you handle major decisions? Your arrangement could be true joint where you have to agree on all major decisions. Another option would be to make one parent the final tiebreaker for all major decisions. Yet another option would be to divide these responsibilities up.

For instance, Mom can be the final decisionmaker regarding academics and extracurricular activities, and Dad can be the final decisionmaker regarding health care and religion. If other topics are important to your family, you could include those as well.

Second, where will you each live after the divorce? Joint custody requires a lot of going back and forth, and it makes things easier on the parents and the children if you live fairly close to each other.

Third, what will your schedule be? Week on, week off is the most common option, but there are other options as discussed above.

Finally, are you able to cooperate and work together for the benefit of the children? This is key for joint custody to work, and it is one of the factors listed in the Alabama Code that the court must consider when awarding joint custody.

6. Temporary Custody: A Temporary Solution for Families

Temporary Custody is typically only awarded in a divorce when there is an emergent or urgent situation affecting the well-being of the minor children, as most parties end up living together while their divorce is pending.

If there is a major emergency, such as severe domestic violence or other danger to the child, a court can even award temporary custody on an ex parte basis, which means without giving advanced notice to the other party.

When temporary custody is at issue, a court will often appoint a Guardian Ad Litem to interview the parents and children and make assessments about whether such an order is warranted or whether a temporary hearing is necessary.

Temporary custody is just temporary, however, and is ordered without prejudice to either party pending a final order.

7. Third-Party Custody: When Someone Else Steps In

Sometimes, neither parent is fit to have custody of their children due to drugs, alcohol, abuse or other issues. When that happens, the Court is required to give custody to someone other than the parents to protect the best interests of the children.

In a divorce, a non-parent can intervene in the parents’ divorce case to ask for custody. If the parents were never married or there is no divorce pending, then the non-parent can file a dependency petition in juvenile court.

Typically, courts prefer that the children be placed with a relative such as a grandparent, aunt, or uncle. If there are no appropriate relatives, then the court may have to award custody of the children to the Department of Human Resources.

8. Split Custody: Dividing Custody between Siblings

Perhaps the most unusual custody arrangement is split custody where some of the children live primarily with one parent and some of the children live primarily with the other parent. This arrangement is disfavored under Alabama law and is used only under exceptional circumstances.

Author: Alison Herlihy

Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.

Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.

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