I’ve been helping people navigate child custody issues since around 2004 when I went into private practice after having been a prosecutor. There are some questions and concerns that come up in almost every consult I have with a parent needing answers or reassurance when faced with a custody situation, whether during a divorce or if the child was born out of wedlock and you now have to determine custody issues. The following applies to initial custody determinations only, not modifications to existing custody orders.
5. Custody determinations are subjective. A judge has complete discretion when determining custody issues and each case is driven by the facts of the particular case. This is why it’s incredibly important to have an attorney who has practiced in front of the judges in your county and knows the idiosyncrasies of each judge. The judge will listen to the evidence and determine what is in the best interest of the child. The judge will take into consideration things such as: the age of the child, the maturity of the child, if a parent has been a primary caregiver, if there’s been any neglect or abuse of the child by a parent, the financial support of the non-caregiving parent, the stability of each parent, whether a parent has a substance addiction, and the involvement of the parent in the child’s life in regards to school, sports, extracurricular activities, and medical.
4. Two types of custody: Legal & Physical. Clients often tell me want “joint custody”. That’s great, but what does “joint custody” mean? In Alabama, that can mean parents equally share physical custody of the children and the children stay with one parent for a week and the other for a week, or they simply have equal say in making decisions and having access to school and medical records and such. In Alabama, you need to distinguish between legal and physical custody.
JOINT PHYSICAL CUSTODY
Alabama recognizes and indeed encourages joint physical custody. That means the child spends equal amounts of time between their parents. Generally, this is a Friday to Friday or Sunday to Sunday schedule. Parents who have schedules such as 24 on and 48 off, can come up with a schedule that accommodates their work schedule so that they still get 50% custodial time. Generally, when there is joint physical custody, child support is not awarded unless there’s a disparity of income. Also, when there’s joint physical custody, there must be a determination as to who makes final decisions in regards to: education, medical, extra-curricular, civic, cultural, and religion.
SOLE PHYSICAL CUSTODY
Sole physical custody is when the child spends the majority of the time with one parent and visits the other parent. That visitation schedule is usually every other weekend and an overnight during the week. It’s important to note that most counties and/or judges have a standard visitation schedule they will implement. This standard schedule also includes a breakdown of the important holidays. Child support is required under this custody arrangement. I’ve encountered situations when a parent wants custody yet they have not been a part of the child’s life. They don’t know the teachers, doctors, child’s schedule, they don’t help with homework nor do have they been a part of the child’s daily routines and activities. Do you really think you should have sole physical custody if you haven’t been involved in their lives?
Legal custody in Alabama is having rights and responsibilities for major decisions concerning the child, to include but not be limited to education, health, religion, and extra-curricular activities. Generally, parents get joint legal custody in Alabama. This means that the parents are to discuss these important matters before a decision is made. This also means that each parent has access to medical records and school records.
3. You will have to get a job. One of the most difficult talks to have with a parent is with the parent who has stayed at home with the child. It’s typically mom, but I’ve also represented dads who were stay at home dads. A divorce will disrupt this and, unless you are awarded a substantial amount in alimony or other support, you will most likely have to get a job outside of the home. Your schedule will change and you will have to figure out child care and transportation of children to and from school and activities. This is one of those unfortunate by-products of divorce that can have a negative effect on a child who is accustomed to mom always being available. There’s no other way to say it, but this part sucks. However, necessity will dictate this. You will have to find a way to financially support yourself and your child. The chances of child support alone providing for all your needs is slim.
2. THERE IS NO AGE FOR A CHILD TO DECIDE. If I had a penny for every time I heard this, I would be very wealthy at this point. In Alabama, there is no age in which a child can decide where he or she wants to live and the parents/courts have to follow that. It’s not 14. It’s not 16. It’s not 12. NO. NO. NO. Don’t listen to your cousin twice removed, your facebook friend, or anyone else but a lawyer licensed in Alabama on this issue. A child of any age is to be shielded as much as possible from adult conversations and decisions. No child should be put in the position to choose between mom or dad. To leave a decision like this up to a child is ripe for abuse by parents who want to get out of paying child support or who want to use the child to get back at the ex-spouse. Now, there are some situations in which a child has clear feelings about this that are based on clear and valid reasons and not because one parent is strict and the other is not. Some children have seen the bad behavior of a parent and want little to do with that parent. So, NO, there is no age at which a child can make a custody decision in Alabama.
1.He threatened to take my children and make it so I’ll never see them again.” Like number 2, I would be very wealthy if I had a penny for every time I heard this. There are cases of parental abduction. I’ve had a few such cases in my career and we worked to get the children returned. I don’t take this threat lightly. However, the odds of it happening are slim. More likely than not, it’s just a threat to try to control you, to manipulate you using your worst fear – not seeing your child. If you are abusive to the children, using drugs, neglecting your children, or some other type of bad behavior directed at the children – yes, there’s a chance you won’t see your children again, but it will be by way of a court order. However, without such bad behavior, the worst-case scenario for you would be for the other parent to get sole physical and you get visitation. At a minimum, absent bad behavior on your part, you will be visitation.
This is not meant to supplement the advice of a lawyer of your choosing and it’s definitely not an exhaustive explanation of custody laws and issues in Alabama. My hope is that this can alleviate some fears and answer a few questions on this issue. Talk to an attorney in regards to your particular case to give advice based on your unique set of facts.
To learn more about child custody in Madison County and surrounding areas, you can contact me via contact information on this site or on my Facebook page at tanyahallfordmediation.
No representation is made that the quality of legal services to be performed is greater than those performed by other lawyers.