Child Custody Decisions Under Alabama Divorce Law
Child custody decisions are possibly one of the most difficult decisions that a court makes in Alabama divorce law. Alabama law states that the court may give custody to either the father or mother as the court deems right and proper after consideration of the moral character and prudence of the parents, as well as the age and sex of the children. Ala. Code § 30-3-1 (1975). In addition to the statutory power under Alabama divorce law to decide custody issues, Alabama divorce courts have inherent power to enter orders regarding custody and care of minor children.
Positive Child Custody decisions are the product of an effective presentation of evidence geared to the considerations used by the Court
CHILD CUSTODY FACTORS An Alabama divorce court considers a number of factors when it determines which party should receive custody. These factors are listed below:
- The sex and age of the children
- The characteristics and needs of the children, including their emotional, social, moral, material, and educational needs.
- The respective home environments of each party.
- The specific characteristics of the party seeking custody, including that parties age, character, stability, mental and physical health.
- The parties respective capacity and interest in providing for the needs of the children, including social, moral, material, and educational needs.
- The interpersonal relationship between each child and the interpersonal relationships between the children and the parents.
- The effect on the child of disturbing for disrupting or continuing in existing custodial situation.
- If the child is of sufficient age and maturity, the preference of the child.
- Reports or recommendations from expert witnesses for independent investigators either of the party or those appointed by the court.
- Any other factor or relevant evidence which may be presented by the parties that has a bearing on a determination of the best interest of the child.
IS ANY ONE FACTOR MORE IMPORTANT THAN THE OTHERS?
No, one particular factor is determinative in and of itself. All of the factors are taken into account. The particular circumstances of the case tends to place more or less weight upon certain factors. Thus each custody case is decided on its own facts. Custody decisions are made by trial court judge without a jury. Therefore, Alabama divorce court judges have a tremendous amount of discretion in determining the appropriate custody arrangement. In any divorce case where custody is an issue, it is extremely important to present any evidence that you may possess that bears on the factors above.
WHAT IF ONE PARTY IS AT FAULT, WILL THAT AFFECT CHILD CUSTODY?
At times the presence of fault by one of the parties may affect the custody decision. However, in and of itself, misconduct, such as adultery, is not an absolute bar to receiving custody. Misconduct by a party may affect custody cases where the misconduct has a demonstrated effect on the children of the marriage. The key to a determination of whether some bad habit or bad conduct by party may affect custody is a determination of whether that bad habit or conduct directly affected the children or whether the conduct or habit is more collateral to custody and more centered on the breakdown of the marriage.
WHAT IF ONE PARTY MAKES MORE MONEY THAN THE OTHER?
Further, the relative level of financial means of the parents is also not determinative of custody issues. Because the court may award child support in conjunction with the custody award, the financial means or lack thereof does not play a determinative part in a custody decision. There is no requirement that a parent be declared unfit in order for the opposing party to be granted custody, and losing custody certainly does not mean that a parent is unfit. Oftentimes custody decisions are made in the face of two parents who are loving, supportive, and capable in relation to their children. For this reason, the paramount consideration in making a child custody decision is the best interest of the child.
IS JOINT CUSTODY OR SOLE CUSTODY PREFERRED UNDER THE LAW?
Alabama Code § 30-3-150 sets out the State of Alabama’s stated policy that joint custody is preferred. The policy favors joint custody in order to assure that minor children have frequent and continuing contact with their parents, where the parents 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 raising their children after the parents have separated or divorced. The statute cautions that joint custody does not necessarily mean an equal amount of physical custody time to each parent. More often than not, even when joint custody is granted, one or the other parent is granted primary physical custody of the children of the marriage and the other party is granted visitation rights.
DO I NEED TO HIRE A LAWYER?
Absolutely. Because custody determinations depend on the consideration of numerous factors, all which must be weighed alone and together, it is advisable to seek the counsel of a qualified and experienced Alabama divorce attorney to assist you in determining whether you should seek custody and whether it is likely that you could succeed in obtaining custody of your children.
William K. Bradford and Amber L. Ladner are Birmingham Alabama divorce lawyers with years of experience assisting clients in custody matters. If you or a loved one is facing divorce where custody is an issue, please call us for a free consultation.