Child Custody Lawyer in Athens and Huntsville, AL

Legal Support for Child Custody Matters

When you have children, your relationship with your spouse does not end with a final divorce decree. Many divorced people are surprised by how much they must communicate with their ex-spouse.

The reality is you will have continued contact with your spouse about support, visitation, and other parental responsibilities. And for the sake of your children, you will want to keep open the lines of communication with your spouse.

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Caution: Do not make agreements or sign anything without talking to your lawyer first.

Custody of minor children consists of two distinct concepts, decision making, and time sharing.

Decision Making

Decision making refers to whether both or one of the parents may be responsible for making decisions affecting the children. Decision making is referred to as Legal Custody. When one parent alone has decision making authority, that parent has “Sole” Legal Custody. When both parents share decision making authority, “Joint” Legal Custody exists.

Time Sharing

Time sharing refers to the amount of time each parent will spend with the children. Time sharing is referred to as Physical Custody. “Sole” Physical Custody means the children will reside with one parent, and the other may have visitation. In a “Joint” Physical Custody scenario, the child lives with each parent for certain periods, which could range from a few days a week to months at a time.

When Parents Cannot Agree on Custody

The Court will make a custody determination based on what it believes to be “the best interests of the child.” When a Court makes an initial determination of custody, each parent has an equal right to try and gain custody of the children.

The concept of “the best interest of the child’ is incredibly important and is the controlling element in a Judge’s initial award of custody. There are several factors a Judge will look at when determining a child’s best interest.

The Court can also consider a child’s preference, but only if the Court finds the child is of sufficient age and maturity. As a general rule, the older the child, the more weight a Judge will give to that child’s wishes.

Factors A Judge Will Consider in Determining Custody

  • The age and sex of the child
  • The child’s needs (such as emotional, material, and educational), and each parent’s ability to meet those needs
  • A parent’s home environment
  • A parent’s age, stability, and mental and physical health
  • The nature of the child’s relationship with a parent
  • The nature of the child’s relationship with any siblings
  • Reports and recommendations of any experts, such as child psychologists
  • Any other factors pertinent to custody

Alabama's Custody Laws

In General

Alabama laws favor Joint Legal Custody. This arrangement promotes frequent and continuing contact between children and both parents and enables parents to share in the rights and responsibilities of raising their children.

Regarding physical custody, one of the factors a Judge will consider is how far the parents live from each other. If it’s a substantial distance, the Judge will likely conclude that joint physical custody might not be in the best interests of the child because moving back and forth between residences could negatively impact the child’s education, or interfere with social activities, such as sports and arts.

As a general rule, Alabama laws disapprove of custody determinations in which siblings are separated.

Visitation (Time Sharing)

The Law favors that both parents be involved in a child’s life. Therefore, when a child is in the Physical Custody of (resides with) one parent, the Court normally grants the other parent visitation rights. The determination of a visitation schedule will often depend on the circumstances of each case, but the controlling factor is the child’s best interest.

Most counties in Alabama mandate minimum visitation schedules when both parents live in Alabama. However, where one of the parents resides out-of-state, setting a visitation schedule is more complicated and can involve more extended visitation periods scattered throughout a year; for example, extended visitation during summer and spring breaks.

However, many other factors can impact visitation, including domestic violence, child abuse, and untreated drug and alcohol abuse. Accordingly, Custody and Visitation can be complex issues.

Custody Modification – The McLendon Standard

In Alabama, a parent seeking to modify a previous child custody determination must demonstrate that a material change in circumstances has occurred such that a change of custody would materially promote the child’s best interests and that the benefits of the change would offset the disruptive effect of the change in custody. Exparte McLendon, 455 So. 2d 863 (Ala. 1984). This standard is the most stringent standard under Alabama law.

Custody Modification – The Couch Standard

In Alabama, a parent seeking to modify a previous child custody determination that does not favor one parent over another, such as an award of joint custody where both parties share both joint legal custody and joint physical custody, or if no previous custody determination has been made, then the “best interests and welfare of the child” standard applies as set forth in Ex parte Couch, 521 So.2d 987, 989 (Ala. 1988).

However, as noted in the previous section, if a previous custody determination favors one parent, i.e., by awarding one parent primary, or sole, physical custody, the McLendon standard applies to the modification action.