Alabama Child Custody Laws

Getting an Alabama Child Custody Order:

In general in Alabama, one or both parents files for custody as part of a divorce action in the applicable circuit court. If the parents were never married, either parent may file for an order establishing custody in the county in which the child has been living for at least six months ("home state"). The deciding factor in establishing custody is the best interest and welfare of the child. The Alabama Joint Custody Statute presumes that it is in the best interests of the child to have frequent and continuing contact with both parents, meaning joint custody.

Factors Considered in an Alabama Child Custody Case to Determine the Best Interests of the Child:

The twelve factors courts apply to decide who gets child custody in Alabama are from the case of Ex parte Devine, 398 So. 2d 686 (1981):

• The gender and age of each child.
• The emotional, social, moral, material, and educational needs of each child.
• The respective home environments offered by each party.
• The characteristics of each party seeking custody, including age, character, stability, mental and physical health.
• The capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children.
• The interpersonal relationship between each child and each parent.
• The interpersonal relationship between the children.
• The effect on the child of disrupting or continuing an existing custodial status.
• The preference of each child, if the child is of sufficient age and maturity.
• The report and recommendation of any expert witnesses or other independent investigator.
• Available alternatives.
• Any other relevant matter the evidence may disclose.

The Alabama Joint Custody Statute (Ala. Code 30-3-150 to 30-3-157, effective January 1, 1997):

The policy of Alabama is to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. Joint custody does not necessarily mean equal physical custody. Alabama speaks in terms of "sole custody" and "joint custody". Sole child custody means one parent makes all of the key decisions affecting the child and that the child lives with one parent. Joint child custody now means both Joint Legal and Joint Physical custody.

In addition to the Devine factors, when determining whether joint custody, as opposed to sole custody or joint legal custody, is in the best interest of the child, the court will also consider the following factors:

• The agreement or lack of agreement of the parents on joint child custody.
• The past and present ability of the parents to cooperate with each other and make decisions jointly.
• The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
• Any history of or potential for inappropriate behavior.
• The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.

Preference of a Child:

In Alabama, the preference of a child for one parent over the other is a relevant consideration in custody, but not a controlling one. The older and more mature a child is, the more likely that child’s preferences will be given weight in deciding custody. Typically, the preferences of a child under the age of seven are irrelevant. At age fourteen and above, the preferences of the child are given persuasive weight, especially when the child’s reasons seem mature and appropriate. Between seven and fourteen, the weight of the preferences of the child will vary, depending on the age, maturity, and perceived independent judgment of the child.

If there is a situation where the rights or interests of the child are in contention, an Alabama court may appoint an attorney to represent the child, known as a guardian ad litem (GAL). The GAL will represent only the interests of the child. Typically, the parties, pursuant to an Order of the court, pay the GAL’s fees.

Emancipation of the child occurs at age nineteen.

Misconduct and Custody:

Alabama will consider adultery or other misconduct of the parties when determining child custody based not upon whether the wrongdoing occurred, but upon the whether the behavior has had or would have a detrimental impact on the child. The same standard applies with regard to cruelty to the other spouse, alcohol or drug use, and religious beliefs and practices. It is not the behavior or practice, but what effect the conduct has had or will have on the child.

Failure to Pay Child Support/Withholding Visitation Rights:

A custodial parent must still allow visitation, even if the other parent fails to pay child support. The Alabama court treats support and visitation as separate issues. The custodial parent must seek enforcement of the child support order through a contempt of court proceeding. Likewise, a parent may not withhold support if the other parent is interfering with visitation, but must seek enforcement of the visitation schedule through a contempt of court proceeding.

Modification of an Alabama Child Custody Order:

Alabama follows the McClendon rule that holds that once a child has been living in a particular custody arrangement, only a compelling reason will cause the court to modify the order. The parent seeking the change in custody must show that the positive good brought about by the modification more than offsets the inherently disruptive effect caused by uprooting the child and that the change of custody "materially promotes" the child's best interest and welfare.

Relocation of Custodial Parent: In 2003, Alabama enacted a statute that requires a custodial parent who is contemplating moving away (greater than sixty miles from the other parent’s address) give notice to the noncustodial parent. The noncustodial parent has the right to object and to schedule a hearing. The statute creates a presumption that the move is not in the best interest of the child.

Interstate/International Child Custody:

Alabama has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which allows filing for child custody only in the child’s "home state", where the child has lived with a parent or person acting as a parent for at least six consecutive months (or if the child is less than six months old, where the child has lived since birth). Under the UCCJEA, Alabama recognizes the Federal Full Faith and Credit Law for Custody and will not supercede another state’s jurisdiction under the requirements of that law. A custody order from another country that substantially conforms with the jurisdictional standards of Alabama state law will be recognized and enforced by the Alabama courts.

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