Area of Law:
When a couple divorces and there is a minor child involved, the divorce decree will specify which parent has physical custody as well as legal custody of the child. Physical custody determines where and with whom the child will live. Legal custody specifies who has the legal right to make important decisions concerning the child related to issues such as education, religion, medical issues, and discipline. Spouses often reach an agreement regarding child custody on their own, but if they do not, the court will intervene and establish custody arrangements based on the best interests of the child. Lawyers.com provides a comprehensive overview of child custody laws in Alabama.
There are typically several different custody arrangements that may be made for children of divorced parents. In most cases, courts will award physical custody to one parent with whom the child will live most of the time. The parent with physical custody, who is referred to as the custodial parent, often shares legal custody, or the right to make decisions pertaining to the child, with the non-custodial parent.
Many child custody arrangements involve joint custody, in which case the child spends a relatively equal amount of time with each parent. One positive aspect of joint custody is that it can lessen the feeling of loss experienced by the child; although in some cases, it may be better for the child to have one “home base,” as opposed to spending every other day, week, or month in alternate homes.
In cases where one parent is awarded sole custody rather than joint custody, the visitation rights of the non-custodial parent are often generous so as to provide a joint custody “feeling” without the complicated logistics. Courts are sometimes reluctant to order joint custody unless the parents demonstrate an ability to get along and make joint decisions according to the best interest of the child.
Alabama courts may award either sole custody or joint custody, with their decision being made based on whichever situation best serves the child's wellbeing. After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. If a parent is denied court-ordered access to a child, he or she 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 visitation order, provide makeup visitation for the time missed, and order counseling or mediation. Alabama courts have discretion regarding visitation, even if the parents have previously agreed to no visitation. When a parent interferes with the visitation schedule, the court may require that parent by statute to post a performance bond to guarantee compliance with the court's orders.
According to Alabama law, courts consider the following factors when awarding child custody:
- Sex 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
Alabama has a statute that governs relocation. Alabama Marital and Domestic Relations Section 30-3-163 requires a custodial parent who is considering moving away to give notice to the non-custodial parent. The noncustodial parent has a legal right to object to the move and to request a court hearing. In most cases, the statute creates a presumption that the move is not in the best interest of the child.