How Custody works in Alabama 

Child Custody in Alabama - An Overview 

In Alabama, Courts often make custody determinations for children of parties seeking a divorce.  The law in Alabama directs the courts to:

give the custody and education of the children of the marriage to either father or mother, as may seem right and proper, having regard to the moral character and prudence of the parents and the age and sex of the children; and pending the action, may make such orders in respect to the custody of the children as their safety and well-being may require.  Code of Alabama, 1975, § 30-3-1.

Alabama also has a Domestic Violence Act that can effect the placement of children in divorce proceedings.  When one party is guilty of domestic violence against the other, and the victim of this domestic violence invokes the Domestic Violence Act by seeking and obtaining an Order of Protection from Domestic Violence as to the abusive spouse, such a finding by the Court raises a rebuttable presumption "that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic or family violence."

 In Jefferson County (Birmingham), the level that abuse much reach before the Court will enter an Order protecting someone from domestic violence varies by judge.  Most judges in the Birmingham area readily invoke such protections when they are convinced that domestic violence has actually occurred and is likely to recur. 

However, because such a finding carries a criminal stigma in Alabama, and for instance causes the perpetrator of domestic violence to be ineligible to legal own a firearm, certain other judge may resist issuing an order under the statute, and while less pervasive in terms of relief from abuse, parties must resort to ordinary restraining order pleading in said court.  Also, while not impossible, other courts may be reluctant to enter domestic violence orders against female perpetrators of domestic violence.  If domestic violence is a factor in your divorce, it is critical to your divorce that your attorney be aware of how the Courts view domestic violence in his/her jurisdiction.

 Issues that the Courts of Alabama must consider in placing custody of a child in a party are:

 1.  The sex and age of the children.

 2.  The characteristics and needs of each child, including their emotional, social, moral, material and educational needs.

 3.  The respective home environments offered by each party.

 4.  The characteristics of those seeking custody, including age, character, stability, mental and physical health.

 5.  The capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the

      children.

 6.  The interpersonal relationship between each child and each parent.

 7.  The interpersonal relationship between the children.

 8.  The effect on the child of disrupting or continuing an existing custodial status.

 9.  Preference of the child, if the child is of sufficient age and maturity.

 10. The report and recommendation of any expert witness or other independent investigator.

 11. The available alternatives.

 12. Any other relevant matter which may be present.  

Alabama law also provides grounds for termination of parental rights, tells us what factors may be considered, and sets up presumptions arising from abandonment.

(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:

(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.

(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.

(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.

(4) Conviction of and imprisonment for a felony.

(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.

(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.

(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:

a. Murder or voluntary manslaughter of another child of that parent.

b. Aiding, abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of another child of that parent.

c. A felony assault or abuse which results in serious bodily injury to the surviving child or another child of that parent. The term "serious bodily injury" means bodily injury which involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

(8) That parental rights to a sibling of the child have been involuntarily terminated.

(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:

(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.

(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.

(3) Failure by the parents to maintain consistent contact or communication with the child.

(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.

(c) In any case where the parents have abandoned a child and such abandonment continues for a period of four months next preceding the filing of the petition, such facts shall constitute a rebuttable presumption that the parents are unable or unwilling to act as parents. Nothing in this subsection is intended to prevent the filing of a petition in an abandonment case prior to the end of the four-month period.

 The application of these issues to your case is an area where the services of an attorney are essential.  If the parties are not able to agree as to the division of custody and its responsibilities, then the court generally has a hearing to make this determination.  The use of private investigators, mental health counselors, teachers and other school administrators to support your custody bid is an area where your attorney's expertise is literally invaluable to you.

 Because these factors, among others, must be considered when custody is an issue in a Alabama divorce, mothers are not always automatically given custody over children, even when the mother has been a good parent to the children and has not done something to put her status in question.  Fathers in Alabama can and do win custody of their children. 

Sometimes, but not always, the party guilty for causing the divorce may be hampered in obtaining custody - especially if the cause of the divorce was conduct that directly impacted the children.  While this occurs infrequently, it does occur, and the determination of whether the conduct impacted the child is one you must discuss thoroughly with your attorney. 

How do I contact Attorney Freeman for his help with my Alabama custody issues?

The easiest way to contact us is to call (205) 323-3030.