What is a No-Fault Divorce?

by Jill Chancey | Sep 3, 2024 | Alabama, Child Support, Custody, Divorce, Family, Family Law, Mobile

What is a No-Fault Divorce?

Simply speaking a no-fault divorce is one in which the parties are not required to give the court specific reasons for getting divorced. A couple can get divorced if they simply cannot get along anymore, rather than having to prove that one spouse did something wrong.

The no-fault divorce does not have to be an uncontested divorce, however. The law applies whether you are going to court or not. Here at Herlihy Family Law, we normally do not name any reasons other than incompatibility and breakdown of the marriage when we file a divorce complaint or agreement.

Understanding No-Fault Divorce

One concern people have when they come to us is whether they have to prove they have a legally approved reason to get divorced. In Alabama, you simply need to state that you’re incompatible, so there’s no need to give details to the court. In the past, some courts required proof that a marriage had failed for specific reasons to grant a divorce.

This might have consisted of providing proof of infidelity or abuse, for example. Luckily the law has determined that divorce is a personal decision and you don’t have to convince a stranger to let you get one.

A Brief History of No-Fault Divorce

Some people are concerned that no-fault divorce is a new idea that is contributing to the divorce rate. The first no-fault divorce law in the Western world was enacted in Prussia in 1757. In the modern era, no-fault divorces date back to the early 20^th century. And in the US, the first no-fault divorce law was enacted in 1969, over 50 years ago. Within ten years the no-fault option was nearly universal in the United States. The divorce rate in the US has actually fallen since the 1970s.

Regardless, one of the main advantages is that these laws can decrease the adversarial nature of a divorce. The previous model tended to increase conflict and even resulted in perjury and false accusations. For example, judges now do not need to determine whether a party has been unfaithful.

In the United States, every state permits no-fault divorce, although the requirements may vary. Some require a specific period of separation, for example. In Alabama, this is not the case. Alabama does require a six-month residency for at least one party. Fortunately, the pre-Civil War Alabama law that required the approval of both houses of the state legislature to grant a divorce is no longer on the books!

Benefits of a No-Fault Divorce

The no-fault option allows the parties to separate the negotiation process from the emotional desire to assign blame or be proven blameless. We know that both parties may be angry, or hurt, or feel betrayed. This doesn’t have to carry over into the divorce negotiation. The emotional side of divorce is better handled by experienced and trained counselors and therapists. Your attorneys are only qualified to handle the legal side of the matter.

If both parties are ready and willing to get divorced, they can choose an uncontested divorce. This is a great option for couples who are low-conflict and able to negotiate in good faith. If it’s possible to negotiate an agreement without going to court, it is far less expensive and time-consuming than a contested divorce through the courts. It’s also likely to result in less ongoing conflict.

Does a No-Fault Divorce Mean I Can’t Even Mention My Spouse’s Faults?

Not necessarily. In an uncontested divorce, your spouse’s faults are irrelevant and do not come into play at all. If the parties are not in agreement and choose a contested divorce, the court may consider bad behavior, such as domestic violence and drug or alcohol abuse, when the case comes to trial. No-fault divorce means neither party has to prove the accusations to actually get divorced.

They do, however, have to provide evidence to back up any accusations if they choose to bring these to the attention of the court and are asking for a decision based on these behaviors. This is most likely to come into play when children are involved, as the safety and well-being of the parties’ children come first in making custody decisions.

If there is evidence of mental illness that endangers the children, this could also become part of the case in a contested divorce. It is not enough to say the other party is being treated for a mental illness, though. Many people find themselves in need of help with depression and anxiety, for example, especially when they’re in a failing marriage.

What matters is that they are getting the help they need and are capable of being good parents. Simply seeing a therapist is not grounds for losing custody.

The Uncontested No-Fault Divorce

Why would you need an attorney to help in a no-fault uncontested divorce? There are two main parts to the process. We start by helping you negotiate your divorce agreement with the other party or their attorney. Once the agreement is in place, we then generate all of the documents required by the court and file them for you.

Sometimes both parties will be in perfect agreement about everything, so we don’t have to help negotiate at all. We draw up the documents, everybody signs, and we file them with the court. After 30 days, they will go to the judge for approval.

You might think (or hope!) that it’s as simple as filing one signed agreement, but several other documents must be filed. This can be up to 7 or 8 documents, depending on your circumstances.

At Herlihy Family Law we have many years of experience handling divorces in Mobile and Baldwin Counties and know exactly what the state, county, and individual judges require.

The Contested No-Fault Divorce

If the parties are not in agreement, your attorney will file a divorce complaint, or respond to your spouse’s. We then guide you through the whole process up to and including a court trial if it comes to that.

Even in the case of a contested divorce, you do not have to persuade a judge to allow you to get divorced. The judge’s job is to determine a fair and equitable agreement based on the law and the facts presented to him or her.

What if I Really Want an At-Fault Divorce?

It’s really not necessary to name and blame in most divorce cases. Consider whether you truly want all of your faults exposed as well, and whether you want all of the unpleasant details of your marriage on the record.

Playing the “blame game” is going to distract you both from the legal issues we are here to assist with. It’s also going to end up costing more money if your attorney has to get involved with proving (and defining!) infidelity, for example.

We do understand the desire to tell the world about your spouse’s terrible behavior; however, fault does not typically affect the outcome of the divorce as much as you might think it should.

Since I Don’t Have to Prove I Deserve a Divorce, What Do I Need to Consider to Move Forward?

The most difficult parts of a divorce agreement are often child custody and child support. You can search our blog for more information about these issues. Some agreement terms can be entirely individual, whereas others must conform to the statutes and standards.

For example, some statutes determine the amount of child support. This is based on a formula that takes into account both parties’ incomes, the cost of healthcare, and the cost of work-related childcare. The amount determined can be altered by agreement, but the judge will need a reason for the deviation from the formula.

The rest of the agreement covers property, assets, and debts. The goal here is an equitable distribution, which doesn’t necessarily mean a 50/50 split. Determining factors include the length of the marriage, what assets and debts a party brought into the marriage, and the income of both parties during the marriage. Pensions and retirement accounts are taken into consideration as well. This can also be very contentious, but we are experienced negotiators and handle this every day.

We also ensure that both parties come to an agreement about the division of personal property, cars and other vehicles, and their pets. (Yes, you can put your pets in your divorce agreement!).

Ready to Talk to an Attorney?

Call the office at 251-432-7909 to schedule a consultation, or go to the homepage of our website and click on “request a consultation.” We are open five days a week and can offer both in-person and Zoom meetings. In a consultation, you will discuss your case, your options, and our fees.

Author: Jill Chancey

Jill Chancey is a New Orleans native who has called Mobile home since 2019. She attended Trinity University in San Antonio, majoring in Art History and English. She also has an MA and a PhD in Art History. After earning a certificate in Paralegal Studies, she pivoted to the legal profession after several decades as an art historian. In her free time she enjoys science fiction, art museums, and collecting and reselling vintage design.

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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: Jill Chancey

Jill Chancey is a New Orleans native who has called Mobile home since 2019. She attended Trinity University in San Antonio, majoring in Art History and English. She also has an MA and a PhD in Art History. After earning a certificate in Paralegal Studies, she pivoted to the legal profession after several decades as an art historian. In her free time she enjoys science fiction, art museums, and collecting and reselling vintage design.

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5 Tips for Successful Co-Parenting

by Anna Eden | May 22, 2024 | Children, Custody, Divorce, Family

5 Tips for Successful Co-Parenting

Having a good co-parenting relationship with your ex is important for your children’s well-being. Most people don’t consider the fact that their relationship with their ex will continue well beyond their children reaching the age of majority.

A good co-parenting relationship will set your children up to have balanced, happy upbringings. Here are five tips to help ensure you and your ex-partner maintain a successful co-parenting relationship:

1. Always remember your children’s needs come first.

This tip is number one because it is the most important. Just because your relationship with your former partner did not work out, does not mean your children need to suffer for it.

Parents must be able to set aside their differences and show their children that their needs are what matters the most. Children will have the best opportunity to thrive in a peaceful, consistent, stable environment. Never use your child as a pawn or tool of manipulation against the other parent.

This will only lead to problems and will cause lasting trauma on your children. You all may no longer be a family unit, but you can still work as a team to make sure that your children are still surrounded by love and support.

2. Communicate respectfully with one another.

This is one of the most basic rules of co-parenting, and the way for it to be most successful is to understand how you and your ex-partner best communicate. Some former couples are only able to communicate via text, email, or other digital messaging platforms and that is perfectly acceptable.

Others can handle in-person discussions better. What’s important is making sure that whatever method of communication you
choose to utilize you keep open. It is detrimental to weaponize information regarding your children because the only ones ultimately hurt by this are your children.

No matter how upset you may be with the other parent, giving them the silent treatment or deliberately withholding information about your children is never the solution.

3. Try your best to stick to your new schedule/routine.

Sticking to your new visitation schedule will not only help you better organize your own time, but it will also help your children maintain a sense of stability and security. While flexibility is important, when necessary, constantly shifting and straying from your routine can cause your children to feel out of balance.

It is their routine and their life that ultimately suffer because they are the ones being shuffled from place to place. There are
always going to be circumstances where a plan must change, and it may be at the last minute, but that doesn’t need to be a habit.

Children need to know that they can count on where and who they’ll be with regularly to maintain stability.

4. Do not bad mouth the other parent.

It is commonly included in divorce or custody agreements that neither parent will disparage the other, or allow others to do so, in front of their children. This can be difficult to follow and enforce, though, because when someone has made your life difficult it is natural to want to vent about their behavior.

Doing this in front of your children, though, can have some pretty serious consequences. When you speak negatively about the other parent, you’re teaching your children that it is okay to be disrespectful, and whether you intend to or not, you are shifting your children’s
perceptions of the other parent.

Instead, save your venting for a friend or therapist, and try to make more of an effort to highlight your co-parent’s good qualities. This will make your children feel safe and comfortable speaking about the parent who isn’t present without hurting your feelings.

5. Leave your children out of adult decisions.

It can be challenging for newly single parents to blur the parent/child relationship line and make the mistake of treating their children like a friend – especially if any of their children are older and more independent. However, bouncing decisions off children or discussing adult topics with them can lead to an imbalance in the parent/child relationship dynamic.

When children have too much power and input in adult decisions it can lead to poor choices by the children, loss of respect for the parent (or other adults), and an increase in their stress and anxiety levels. Kids are meant to be kids.

Allow them to have a voice when it is appropriate, but make sure you are not involving them in adult topics, like finances or parenting issues.

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Author: Anna Eden

Attorney Anna Eden is a native of Mobile, Alabama. Prior to joining Herlihy Family Law, Anna worked as a law clerk for Circuit Court Judges Michael Windom and Michael Sherman. It was during her time clerking for Judge Sherman that Anna discovered her passion for helping people navigate the complex and emotional issues involved in family law.

Anna aids in the representation of individuals across a variety of family law issues, including divorce and child support, juvenile law, child custody law, probate, and wills.

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3 Common visitation schedules in divorce in Mobile, AL

by Walter Gewin | Mar 25, 2024 | Alabama, Children, Custody, Divorce, Family, Family Law, Mobile, Visitation

3 Common visitation schedules in divorce in Mobile, AL

While divorces are far from one size fits all, there are a few common visitation schedules in divorce in Mobile, AL.

In uncontested divorces and divorces settled by agreements, visitation schedules can vary according to the terms the parties agree upon.

Also in the event the visiting party is found to be on drugs or dangerous, visitation can be restricted to supervised visitation, daytime only, or supervised visitation at the Family Center.

Absent extenuating circumstances just mentioned and assuming that a divorce case proceeds to trial, visitation schedules are often as follows in Mobile, AL:

Standard Visitation

Both of our judges in Mobile, AL have a standard visitation schedule wherein one parent has physical custody and the other parent has “standard visitation.”

This visitation schedule is the most commonly utilized type of visitation schedule in Mobile. The visiting parent has the child(ren) every other weekend Thursday through Sunday, and the weeks that the visiting parent does not have weekend visitation, they have visitation from the release of school on Thursday through return to school Friday morning.

Additionally, with standard visitation, the parents divide the holidays. Each parent has a week with the child(ren) during Christmas break, alternating which parent gets the first or second week of Christmas break every other year.

The visiting parent also has alternate year spring break and Thanksgiving break with the child(ren). For summer, each parent has the child(ren) for one month, with the custodial parent having the kid(s) for the first two weeks of June and the first two weeks of July, and the visiting parent having the last two weeks of June and July.

Additionally, the child(ren) are with the mother on Mother’s Day weekend and with the father on Father’s Day weekend.

Joint Physical Custody

If parties receive joint physical custody of their child(ren), the parties typically rotate the custody of the kid(s) on a weekly basis.

Joint custody visitation may then be further expounded upon to give the parties a larger amount of uninterrupted visitation in the summer, designated time with the child(ren) on Mother’s Day and Father’s Day, specified Christmas Eve/Day visitation, and alternate Thanksgiving and spring break visitation.

Joint Custody is not the standard visitation schedule for divorces in Mobile, AL, however both of our Judges have been known to order Joint Physical Custody in certain cases at their discretion.

Out of State Visitation

Should the visiting parent live out of state, the visiting parent’s visitation will more than likely resemble some form of out-of-state visitation.

This visitation schedule allows for regularly scheduled visits for the visiting parent as well as accommodation for the visiting parent if the visiting parent makes additional efforts to visit the child(ren) in the city where the child(ren) resides.

In this visitation schedule, one parent has physical custody and the other has visitation.

The visiting, nonresident parent typically has visitation one weekend per month from Friday to Sunday, to be exercised in the city in which the child(ren) reside, provided the non-custodial parent shall provide 7 days’ notice to the custodial parent of their intent to exercise said visitation.

In the summer the visiting parent often will be allotted a larger amount of summer visitation, such as 6 weeks, due to the longer distance between them and the home of the minor child(ren) and the ability of the kid(s) to visit due to school not being in session.

The visiting parent also gets a week with the minor child(ren) at Christmas, alternate Thanksgiving, and alternate spring breaks.

Additionally, often the visiting parent will also get the ability to visit with the kid(s) any other time when the visiting parent is in the hometown of the child(ren) provided he gives notice beforehand, said visit is no longer than 48 hours, and said visit will not interfere with the kid(s) school.

Again, the facts in every divorce are unique and Judges can tailor custody and visitation as needed. While these are the most common visitation schedules that result from divorces in Mobile, AL, every case is different.

Judgments of Divorce are final and the terms therein regarding custody and visitation last until the children become adults.

Author: Walter Gewin

Attorney Walter Gewin is a native of Mobile, Alabama. After graduation from law school, Walter clerked for Circuit Court Judge John Lockett before pursuing a career in the private practice of law. Initially, practicing a wide variety of law; Walter’s practice has become more focused on family law, including juvenile, probate, and domestic relations matters. Walter also currently serves as a certified Guardian Ad Litem in Dependency, Delinquency, and Domestic Relations matters.

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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: Jill Chancey

Jill Chancey is a New Orleans native who has called Mobile home since 2019. She attended Trinity University in San Antonio, majoring in Art History and English. She also has an MA and a PhD in Art History. After earning a certificate in Paralegal Studies, she pivoted to the legal profession after several decades as an art historian. In her free time she enjoys science fiction, art museums, and collecting and reselling vintage design.

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Understanding the Role of a Guardian ad Litem in Divorce and Custody Cases

by Anna Eden | Dec 1, 2023 | Children, Custody, Divorce, Family Law, Uncategorized

Understanding the Role of a Guardian ad Litem in Divorce and Custody Cases

Most people are not familiar with the role of a guardian ad litem in a divorce or child custody case. In this article, we will explain the role of a guardian ad litem and discuss the benefits of having a guardian ad litem.

1. What is a Guardian ad Litem?

A Guardian ad Litem is a licensed attorney who is appointed by the Court to represent the best interests of minor children in divorce and custody disputes.

A Guardian ad Litem, often simply referred to as a “GAL”, will have extensive knowledge and experience in practicing family law.

Judges will appoint GALs that they know and trust to be neutral in whatever the pending matter may be, while also advocating for the needs and best interests of the minor children involved.

GALs do not represent the parents in the case and cannot give them legal advice.

Both parties in a case will typically be equally responsible for the costs of a GALs service in a case, absent some kind of extraordinary circumstances.

2. What are the duties of a Guardian ad Litem?

GALs have several different responsibilities. Once they are appointed to a case, they are tasked with meeting and interviewing both of the parties, as well as the minor children.

They will take notes, review all the pleadings that have been filed, and familiarize themselves with the case and the issues at hand.

Depending on the length of your case, GALs will likely have multiple meetings or check-ins with everyone involved; on some occasions, they may even do home visits if the circumstances warrant them.

The Guardian ad Litem also has the duty of recommending to the court what they believe would be an appropriate temporary visitation/custody schedule while a case is pending.

This is why Judges appoint attorneys to this role who are experienced in family law matters.

Sometimes, the temporary visitation schedule that the GAL recommends becomes the parties’ permanent arrangement, but ultimately, the Judge makes all final decisions.

The GAL will also be present during every trial and hearing and has the opportunity to ask witnesses questions just as the parties’ attorneys do.

GALs are also prohibited from having ex parte communications with the court – meaning they cannot have private one-on-one meetings with the Judge.

Ultimately, the Guardian ad Litem’s role is to advocate for their client, just like any other attorney.

3. What are the benefits of having a Guardian ad Litem?

Guardian ad Litems can be tremendously helpful for your case. Beyond the role of advocating for children, GALs can also help remedy disputes about visitation that arise during a case that might otherwise require the filing of a motion with the court.

This saves the parties’ money and the Court’s time – a win for everyone. GALs also serve as your child’s voice during a case.

Though custody and visitation are not solely based on what the child wants, their preferences are one of the many factors considered, and a GAL is the individual who is able to share those opinions with the court.

Parents are also strongly discouraged from discussing their divorce or custody case with their children, regardless of their age. GALs are able to step in and answer any questions your children may have about what is going on and can best explain to them what the process is.

It is in everyone’s best interest for your children to have a good relationship with and trust in their GAL.

At Herlihy Family Law, all of our attorneys have experience serving as Guardian ad Litems in both Circuit Court and Juvenile Court in Mobile County.

Author: Anna Eden

Attorney Anna Eden is a native of Mobile, Alabama. Prior to joining Herlihy Family Law, Anna worked as a law clerk for Circuit Court Judges Michael Windom and Michael Sherman. It was during her time clerking for Judge Sherman that Anna discovered her passion for helping people navigate the complex and emotional issues involved in family law.

Anna aids in the representation of individuals across a variety of family law issues, including divorce and child support, juvenile law, child custody law, probate, and wills.

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