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PARENTAL RIGHTS IN ALABAMA DIVORCE LAW

parental rightsWhat Are My Parental Rights In Alabama Divorce Law?

In Alabama, the term “Parental Rights” refers to a broad concept that covers such things as a parent’s right to a relationship with their child, the child’s right to have a relationship with their parent, the respective rights of the parents to have legal and physical custody of a child, and the legal presumption that child custody should be placed with the mother or father of a child. In the context of an Alabama divorce parental rights also refer to the rights of a non custodial parent to have reasonable, meaningful visitation with their children, as well as the duties and rights of the custodial parent.

Parental Rights in Alabama Divorce Cases

At the onset of a divorce, both mother and father stand on a level playing field in terms of custody. Both parents are presumed to be equally capable of caring for and raising the child, equally capable of fulfilling their duties and responsibilities as a parent. Because of this, both parents have an equal chance of receiving an award of physical custody, legal custody, or both. However, in a divorce, the court deciding issues of custody and visitation has a great deal of discretion to make decisions affecting your parental rights. The court must take a multitude of factors into consideration, and ultimately is duty bound to make a custody determination based on the best interests of the child. For a more in depth discussion of the factors considered by the court in determining custody, see our page on child custody.

Consistent with the general principles of parental rights and the right to a meaningful relationship with your child, Alabama law has adopted the concept that joint custody is presumed to be the correct custodial arrangement unless the evidence in front of the trial court dictates otherwise.

Joint Custody. It is the policy of this state 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 Code § 30-3-150

In terms of divorce and child custody cases, the most prominent concept linked to parental rights is the concept of joint custody.

What Is Joint Custody?

In order to understand the meaning of the term joint custody, it must first be understood that there are two kinds of custody: legal custody and physical custody. Legal custody refers to the right to make decisions regarding the child’s welfare in various aspects of the child’s life including education, religion, cultural matters, medical matters, civic and social matters, and athletics, among other areas. Physical custody refers to the designation of where the child will actually live. In terms of joint custody, these two types of custody can be separate. One parent may be designated as the primary physical custodian of the child while both parents are designated as joint legal custodians for the child.

What Is Joint Legal Custody?

Joint legal custody refers to a situation where both parents exercise their parental rights and have equal authority to make decisions about the child’s welfare and life. As noted above the decision-making authority covers virtually all aspects of the child’s life including education, religion, culture matters, among others. Commonly, divorce judgments contained what is referred to as a “tiebreaker provision.” This provision simply sets out that one of the other parent has the ultimate decision-making authority in the event that the two parents cannot agree regarding an issue as to some aspect of the child’s life. Ideally, when determining which parent has the ultimate tie-breaking authority, the parent who is better equipped to make good informed decisions should probably be the parent with the ultimate decision-making authority as to that particular area of the child’s life.

What Is Joint Physical Custody?

Joint physical custody refers to a situation where both parents exercise their parental rights and share physical custody of the child; no one parent is designated as a primary physical custodian. Under such a situation the child could spend equal amounts of time in the physical custody of each parent. This concept could mean that the child spends a set period of time in the mother’s care, followed by an equal amount of time in the father’s care. However, this is not always necessarily the case, as noted in the Alabama statute quoted above, where it states that joint custody does not always equal physical custody. The respective time periods that the child spends with each parent under a joint or physical custody arrangement can vary, meaning that one of the other parent may have slightly more or less time during which the child is in their physical custody depending on the circumstances.

For example, the custody arrangement may be one in which the child spends a portion of any given week or month with one parent with the remaining portion of the week or month being spent with the other parent. Joint custody situations such as these are particularly appropriate where parents’ schedules are unusual such as where they work non-regular hours, night shift, weekends, or shift work. In such situations joint physical custody allows the parties to craft a schedule which gives both parents a consistent amount of quality time in a significant quantity so as to foster the parental rights to a meaningful relationship with their child.

Does Joint Custody Affect Child Support?

The amount of child support and the necessity of child support may be affected by a joint physical custody arrangement. The child support obligation is based largely on the concept that the custodial parent bears the lion’s share of the expenses for the support and maintenance of the child. Therefore, it is appropriate that the financial burden is shifted to the non custodial parent in order to achieve a situation for both parents are contributing equally to the needs of the child. Where both parents are equally sharing the expenses of support and maintenance the need to shift the support expense is reduced or eliminated in some cases. True joint physical custody is a valid reason for deviating from the Alabama Child Support Guidelines. It is possible that there could be no child support obligation and situation where the parents truly share equal physical custody of the child and the child spends equal amounts of time with each parent. In such a situation the child would maintain a true living situation with each parent and each parent would, in theory, shoulder an equal amount of the cost of the support and maintenance of the child by virtue of the joint physical custody situation itself. In general, divorce courts are amenable to such situations so long as a joint physical custody award is in the best interests of the child.

Do Joint Custody Arraignments Work?

The short answer is, yes. However, joint custody does not work in every situation. There are some common sense indicators as to the likelihood of success of joint custody in any divorce case, including, but not limited to the following:

  • The ability of the parents to work with one another and to communicate with one another in an effective, cooperative, and reasonable manner. Where parties frequently engage in squabbles and fights over various aspects of the child’s life joint custody arrangements generally do not work as well as expected. The best situation for a joint custody arrangement is where both parents are agreeable to the arrangement and work directly with the other parent to ensure that the joint custody arrangement works for both the parents and the child. If you are seeking or asking for a joint custody arrangement it’s important that you come to terms with the necessity that you be willing to work with your former spouse in order to make the arrangement successful.
  • Another factor that affects the workability of a joint custody arrangement is the geographic living arrangements of the parties. Joint custody agreements tend to be favored and workable in situations where the parents live close in proximity to one another. This is particularly important in terms of school-age children. Having both parents within the same school district, while not mandatory, is without question helpful. Having both parents living within a close geographic area greatly assist the parents in keeping the lives of the children consistent in terms of school, social relationships, church attendance, and extracurricular activities. Where parents live in diverse geographical locations, joint custody becomes much more difficult because of the frequent exchange of custody between the parents, And the need for both parents to be in a position to ensure that the child attends school in other activities on a consistent and regular basis.
  • In addition to the factors above, the specific child’s personality and ability to transition on a regular basis between households must be considered. Some children simply do not do well with frequent change, while other children seem to have no problem whatsoever. While it may not be possible to determine the impact of this factor prior to entering into a joint custody situation, it should be considered, and if a child has obvious problems with the arrangement it should be taken into consideration.

What Are The Alternatives To Joint Custody?

In general, joint legal custody is the norm in most divorce settlements and judgments. With the inclusion of tie-breaking provisions it is unlikely that the parents will find themselves in a situation where their disagreement on some issue in the child’s life reaches an impasse. However, under the right set of circumstances it is possible that a court could award one of the other parent primary legal custody of a child. Under such a situation that parent would have ultimate decision-making authority as to all matters in the child’s life.

In terms of joint physical custody the alternative is to have one parent awarded sole physical custody of the child, or the designation of one parent as the “primary physical custodian.” In such a situation the noncustodial parent receives a visitation schedule setting out specific times during which they have the child in their custody, including specific weekends, portions of holidays, parts of spring and summer vacations, and other occasions. Here again, it is the duty of the court to ensure that whatever visitation schedule is put in place provides the noncustodial parent with meaningful and regular visitations with child. This means that in cases of unusual work schedules, or where parents who live out of town or out of state, the visitation schedule should be molded and adapted to the circumstances. Because of this fact, it is difficult to justify the use of the word “standard visitation” in the context of a divorce case. While it is true that many divorces end up with a visitation schedule for the noncustodial parent receives every other weekend or the first and third weekends of the month plus various holidays and other occasions, it is in no way mandatory that this schedule be imposed. Please review our page on “standard visitation” for more information.

In a divorce involving children and custody issues, the decision as to the custody arrangement is of utmost importance for both the parents and the child. It is a complicated decision which requires consideration of numerous factors in varying degrees to arrive at the best possible situation to maximize the ability of the parents to exercise their parental rights and have meaningful relationships with their children. An experienced divorce attorney can help you in devising a workable and appropriate custody arrangement, and presenting that arrangement to the court into the opposing side in an effort to secure for you what you need in order to stay in the lives of your children.

Bradford Ladner LLP is a Birmingham Alabama law firm. We represent clients inside and outside of Alabama in all manner of divorce cases, trials and appeals in Birmingham, Jefferson County, and throughout the State of Alabama, involving issues of child custody, modification of child custody, child support, modifications, and visitation. We would be happy to speak with you concerning your divorce case.

Please contact Amber Ladner or Meredith Maitrejean at the numbers below.
205-802-8823 Local
1-855 587-6350 Nationwide