Alabama Child Custody and Visitation Guidelines
Alabama family courts primarily prefer to allow both co-parents to share the rights and responsibilities of raising their child. This is especially true in cases where younger children are involved. It is common practice in Alabama to assure that younger children have frequent, continuing, and meaningful contact with both co-parents, provided that they are fit to handle their parental responsibilities. This does not exclude the possibility that sole physical and legal custody can be granted, or any variation of the two. Alabama child custody laws also give co-parents the opportunity to create and submit their own parenting plans to be reviewed and considered by the court.
Alabama Favors Joint Custody
Because it encourages frequent, continuing, and meaningful contact with both parents, Alabama child custody laws and courts tend to favor granting joint custody to co-parents. Most family courts and family law professionals in the state of Alabama consider this to be in the best interest of the child. In most cases, joint custody does not imply that both co-parents will receive and equal amount of physical custody of the child. Time is typically split unevenly such as 40/60 or 30/70 instead of split in half. The Alabama child custody laws and courts must determine how the time will be split based on various factors that they observe in the courtroom. These factors include but are not limited to the following.
Alabama still considers the gender and current age of the child a reasonable factor to consider when awarding custody. Items reviewed when making a custody decision may include:
- The home environment that each co-parent can provide for the child and how each co-parent can provide for the child, financially and emotionally.
- The willingness of each co-parent to facilitate a strong and lasting relationship between their child and the other co-parent.
- The ability or lack of ability for the co-parents to agree on the terms of their joint custody arrangement. This more generally shows the ability of the co-parents to cooperate with each other.
- The geographic location of both co-parents and how that might affect the joint custody agreement, but more importantly how it might affect the child mentally and emotionally.
Types of Custody
The court may award either “sole legal custody” or “joint physical custody” if it is in the best interest of the child. When the divorce is finalized both physical (residential) and legal custody will be determine
“Sole legal custody” means one parent makes all the key decisions such as health, education, general welfare and religion affecting the child(ren), and it means that the child(ren) only live with one parent. This parent awarded custody is referred to as the “custodian” and the other is considered the “non-custodial” parent.
“Joint physical custody”, often referred to as shared parenting means parents share equal legal custody but not necessarily equal physical custody of the child(ren). Both have an equal right and responsibility to make important decisions regarding issues of health, education, general welfare and religion affecting the child(ren).
Considerations for Custody Award
Under Alabama law, custody of any child(ren) of the marriage may be granted jointly or to either parent by court decision (order). Because joint custody is presumed to be in the best interests of the child(ren) in Alabama, the judge shall consider joint custody in every case. If both parents request it, joint custody shall be ordered unless the Court makes a specific finding as to why it should not be so ordered.
To make this determination, the Court exercises certain deliberations to award custody, generally based upon those factors considered to be in the best interest and welfare of the child(ren).
In making a decision for custody, the court will further consider:
- Safety and well-being of the child;
- Age and gender of each child;
- Parental cooperation and agreements/parenting plans;
- Capacity and interest of each parent to provide for the emotional,
social, moral, material and educational needs of the children;
- Characteristics of each parent seeking custody, including age, character, stability, mental and physical health;
- Interpersonal relationship between each child and each parent;
- Preference of each child, if the child is of sufficient age and maturity;
- Respective home environments and geographic proximity of parents;
- Reports and recommendations of any expert witnesses or other independent investigator; and the
- Effect on the child(ren) of disrupting or continuing an existing custodial status.
Where “custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Access” or visitation addresses the non-custodial parent’s rights (when, where, how long, etc.) to spend time with the child(ren). And as in determining custody, judges have broad latitude in providing for access rights as well. The Court also has discretion to provide for access rights, even if both parents had previously agreed to no visitation. It is within the Court’s discretion to determine whether the parents will follow a specific schedule or allow more general conditions for access outside of direct court intervention programs. Parental cooperation and written parenting agreements are very helpful in guiding the Court in making such decisions. When parents cannot agree on child custody and access issues, the Court may order them to participate in programs offered by the Children’s Rights Council and/or other providers. These programs, such as SPEAK and Safe Haven or Gift Exchange access centers help them better cooperate and increase parental awareness of the affect negative behaviors may have on their child(ren).
Shared Parenting Agreements
The purpose of a shared parenting agreement is to reach an understanding on how to jointly raise and care for the child(ren) with both parents sharing in the responsibilities and maintaining involvement in their day to day life. The agreements require a flexibility and dedication of both parents to act in the best interest of their child(ren). A shared parenting agreement fairly negotiated before a judgment of divorce has a far better likelihood of acceptance by the Court, and will help reduce the trauma to the child(ren) after a divorce is finalized.
Court Orders and Modification
After a decision of custody and access is made, an order is signed by the judge and filed with the Clerk of the Court. Both parents are bound by this order and may be found in contempt of the court for failing to honor any part. If in the instance a parent is denied court-ordered access or visitation to any child(ren), that parent may bring the issue back before the court by filing a “Petition for Modification.” If it is in the best interest of the child, the judge may decide to modify the access (visitation) order; order makeup visitation for the time missed; order counseling or mediation by one or both parents; or other remedy the court may determine best to ensure compliance. Additionally, if a parent should interfere with an orderly access schedule, the Court may by Alabama statute require the offending parent to post a performance bond to guarantee compliance with the Court’s orders.
Alabama is one of few states that have addressed the issue of parental relocation by creating a statute with the presumption that in most cases a distant relocation is not in the best interest of the child(ren). Under the law, a custodial parent who’s contemplating moving out of the immediate area must give notice to the non-custodial parent. The non-custodial parent has the right to object to the move and request a hearing to consider the issue before the court.
Establishing paternity gives a child born outside of marriage the same legal rights as a child born to married parents. In Alabama, the age of majority is 19. When a married couple has a child, the law automatically recognizes the husband as the father. When an unmarried woman has a child, an official act is needed to establish the legal father of the child. This is called establishing paternity. Sometimes a parent may want proof that the man is the biological father of the child. In that case, a paternity test will be used to show that either the man is not the biological father (he is excluded), or, that there is an extremely high probability that the man is the father of the child. The results of a paternity test are then used by the court as evidence of parentage. A court order will then be issued establishing paternity.
The State of Alabama will use the following processes to establish paternity:
Uncontested consent process:
This process requires both the mother and the alleged father to agree that the alleged father is the biological father of the minor child. The parties can do this by completing an Affidavit of Paternity either through the in-hospital process before leaving the birthing hospital or at a later time.
Affidavit of Paternity:
This affidavit, if properly signed and notarized, creates a legal finding of paternity under Alabama law. It is a legally sufficient basis for establishing an obligation for child support and birth expenses. This form can be completed any time after the child’s birth and before the child’s nineteenth birthday.
All birthing hospitals must allow unmarried mothers and alleged fathers the opportunity to sign an affidavit of paternity at the time of their child’s birth.
This process gives the Department of Human Resources the authority to administratively order genetic testing. In most cases, this eliminates the need to involve the court in genetic testing. However, the court must issue an order establishing paternity and support.
Contested judicial process:
The contested judicial process is used when the alleged father refuses to acknowledge paternity or when the alleged father and/or mother refuse to cooperate with administrative genetic testing.
Registration of Out of State Orders
A child custody determination issued by a court of another state may be registered in Alabama, with or without a simultaneous request for enforcement, by sending to the appropriate court in this state: (1) A letter or other document requesting registration; (2) Two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and (3) . . .the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.
Uniform Child Custody Jurisdiction Act
The Uniform Child Custody Jurisdiction Act (UCCJA) has been adopted by Alabama, as well as the other 49 states. This act gives jurisdiction for custody cases to the location that is most closely associated with the child. Within Alabama, the Court has jurisdiction to hear child custody cases, and the Court also has the power to override any agreement if they believe the agreement is not in the best interest of the child.
If the parties are having trouble reaching an agreement, mediation is an option. A mediator specializes in helping people reach an agreement that is fair and will last. The mediator’s role is not to take sides, but to bring the two sides together.
ALABAMA RESOURCE LINE
Note: The foregoing information is provided as general child support law guidelines in the state of Alabama and should not be considered as legal advice specific to your case. After reviewing the above material, you will be presented with the opportunity to submit more details specific to your case directly to About The Children.
Submitted by Linda O’Marie, Paralegal
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