Exploring Child Custody Laws in Alabama

In Episode 3 of the Herlihy Family Law Podcast, Attorney Alison Herlihy provides a clear, insightful breakdown of Alabama’s child custody laws. From understanding the differences between legal and physical custody to navigating custody modifications, this episode offers valuable guidance for parents facing custody-related decisions.

Types of Custody in Alabama

In Alabama, child custody falls into two main categories: legal custody and physical custody.

• Legal custody determines which parent has the authority to make major decisions regarding the child’s upbringing, such as education, healthcare, and extracurricular activities.
• Physical custody refers to where the child lives and the time they spend with each parent.

Within these categories, custody can be either joint or sole, creating four possible custody arrangements:

• Joint legal custody: Both parents share decision-making responsibilities.
• Sole legal custody: One parent has full authority to make major decisions.
• Joint physical custody: The child spends a significant amount of time with both parents.
• Sole physical custody: The child primarily lives with one parent, while the other has visitation rights.

Sole legal custody is rare and typically occurs only when one parent is deemed unsafe or unfit.

Decision-Making Challenges in Joint Custody

Joint custody requires consistent communication and cooperation between parents. In situations where disagreements arise, especially regarding critical decisions like education or healthcare, courts may designate one parent as the “tiebreaker” based on their expertise or circumstances. For instance, a parent with a medical background might have the final say in healthcare decisions.

How Courts Decide Custody: The Ex Parte Divine Case

When courts make initial custody determinations, they refer to the Ex Parte Divine case, which outlines 12 key factors, including:

• The sex of the child,
• The age of the child,
• The emotional, social, moral, material, and educational needs of the child,
• The respective home environments offered by each party,
• The characteristics of each party seeking custody, including age, character, stability and mental and physical health, 
• The capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the child, 
• The interpersonal relationship between each child and each parent,
• The interpersonal relationship between the children, in the case of siblings,
• The effect on the child of disrupting or continuing an existing custodial status, if the parties are already living separately, 
• The preference of the child, if the child is of sufficient age and maturity,
• The report and recommendation of any expert witnesses or other independent investigators, such as a psychologist or a guardian ad litem for the children.

These factors help judges prioritize the child’s best interests.

Can a Child Choose Where to Live?

One common misconception is that children can choose which parent to live with at a certain age. However, in Alabama, the child’s preference is only one of many factors considered by the court. There is no specific age at which a child’s decision becomes binding; instead, the court evaluates the child’s maturity and reasoning.

Parental Fitness and Custody Disputes

Parental fitness is another crucial consideration. Courts presume both parents are fit unless proven otherwise. Declaring a parent unfit is a high bar to meet, requiring evidence of abandonment, substance abuse, incarceration, or other severe issues. This standard is even more stringent when a non-parent, like a grandparent, petitions for custody.

Modifying an Existing Custody Order

Custody modifications follow the legal standard set by Alabama’s McLendon case for modifying custody. To request a change, a parent must demonstrate:

• A substantial and material change in circumstances since the last order.
• That the benefits of modifying custody outweigh the potential disruption to the child’s life.

Courts generally prioritize stability, as frequent custody changes can be disruptive for children.

Final Advice For Parents

It is important to prioritize the child’s well-being throughout the custody process. Parents are advised to avoid placing children in the middle of conflicts and to foster positive relationships with both parents whenever possible.

“Your child is half you and half the other parent. No matter how challenging the relationship with the other parent might be, it’s essential to support your child’s connection with both parents.”

Need Help Navigating Child Custody?

For more insights on Alabama’s custody laws, listen to the full episode of the Herlihy Family Law Podcast. If you need personalized guidance, visit www.herlihyfamilylaw.com to request a consultation with Attorney Alison Herlihy.

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