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Know the Laws: Alabama

UPDATED July 23, 2013

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Who can get custody or visitation

back to topWho can get custody?

At least one of the child's parents is entitled to custody, unless there is evidence that both parents are unfit.

If the parents are unfit or no longer living, the judge can award custody to another person or to an agency such as the Department of Human Resources, depending on what the judge believes to be in the best interest of the child. If custody cannot be awarded to a parent, there is a strongly supported view that it should be awarded to another relative if the placement will be safe for the child.

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back to topCan a parent who committed violence get custody?

Sometimes. A judge is supposed to look at any history of domestic or family abuse when considering who gets custody. If the judge determines that there has been domestic abuse, the judge is supposed to assume that it is not in the child’s best interest for the abuser to get sole or joint custody.*1  The judge should assume that it is in the best interest of the child to live with the non-abusive parent.*2  However, the abuser can still try to show the judge that it would be in the child’s best interests to give him/her custody. If the judge is convinced, s/he may give the abuser sole and/or joint custody of the child.

The judge must also take into account:

  • what impact, if any, the domestic violence had on the child;*1
  • the safety and well-being of the child and of the parent who is the victim of family or domestic violence; or
  • the abuser's history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault, to another person.*3
Also, the law states that if a parent is absent or relocates because of an act of domestic or family violence by the other parent, the absence or relocation may not be a factor that the judge can use against the parent in making a decision as to custody or visitation.*4

Note: The court can also refer, but cannot order, an adult who is a victim of family or domestic violence to attend counseling relating to the victim's status or behavior as a victim, individually or with the abuser as a condition of receiving custody of a child or as a condition of visitation.*5

*1 Alabama Code § 30-3-131
*2 Alabama Code § 30-3-133
*3 Alabama Code § 30-3-132(a)
*4 Alabama Code § 30-3-132(b)
*5 Alabama Code § 30-3-135

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back to topCan a parent who committed violence get visitation?

Sometimes. Visitation by a parent who committed violence may be allowed, but only if the judge believes that proper measures can be taken to insure the safety of both the child and the non-abusive parent. This may include picking up and dropping off the child in a protected place or having the visits be supervised. The judge can also order an abuser to pay for supervised visitation, or to pay a bond (money that will be kept if he doesn't return the child).  The judge may also order the abuser to attend a batterer's treatment program and order the abuser to not have or use alcohol or drugs during the visitation and for 24 hours before the visitation.  The judge can also prohibit overnight visits. The judge can also order that your address be kept confidential.*

The court can also refer, but cannot order, an adult who is a victim of family or domestic violence to attend counseling relating to the victim's status or behavior as a victim, individually or with the abuser as a condition of receiving custody of a child or as a condition of visitation.*

When deciding visitation, the judge must also take into account:

  • the safety and well-being of the child and of the parent who is the victim of family or domestic violence;
  • the abuser's history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault, to another person.**

Also, the law states that if a parent is absent or relocates because of an act of domestic or family violence by the other parent, the absence or relocation may not be a factor that the judge can use against the parent in making a decision as to custody or visitation.***

If the judge does not believe that the victim and/or child remains at risk from the abuser, the judge may order unsupervised visitation without any conditional measures to protect the victim and child. Therefore, if you feel there is still a risk of violence, the judge has to be convinced that you and your child need protection.

* Alabama Code § 30-3-135
** Alabama Code § 30-3-132(a)
*** Alabama Code § 30-3-132(b)

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back to topI am the child's relative. Can I get custody of the child?

There is an assumption that it is in the best interest of the child to be with the natural parent.  For a non-parent to get custody, the parents have to either give up their rights (or be deceased) or the non-parent seeking custody has to prove that the parent is guilty of such bad misconduct or neglect that the parent is unfit and an improper person to be entrusted with the care and upbringing of the child.*

* Ex parte Jonathan M. Terry; 494 So. 2d 628,  Supreme Court of Alabama (1986)

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back to topI am the child's grandparent. Can I get visitation?

Under certain circumstances, yes.  Any grandparent (but not great-grandparent) can file for visitation when there's already a custody, divorce, or certain types of termination of parental rights proceedings going on that are related to the child.*

Grandparents can only file for visitation outside of an existing case if:

  • One or both of the parents has died;
  • The parents got divorced or were never married;
  • The parent abandoned the child; or
  • When the child is living with both biological parents, who are still legally married to each other, and either or both parents have prohibited a relationship between the child and the grandparent.*1
A grandparent can petition for this type of visitation only once during any two-year period - and not in a year when there is another custody action filed concerning the child.  However, the petition by one grandparent does not prevent any other grandparent from filing within the same two-year period.  After visitation rights have been granted to any grandparent, the legal custodian, guardian, or parent of the child may petition the court for to revoke (end) or amend the visitation rights if there is good cause (reason) to do so.  The petition to revoke or amend can only be filed once in any two-year period unless there is evidence of abuse is other exceptional circumstances.*2

Regardless of whether the grandparent is filing for visitation in an existing case or as a new case, if the fit, natural, custodial parent objects, the grandparent must first prove that the denial of the requested visitation would harm the child.*3  Then, if the judge believes that this is the case, the judge will determine if it is in the best interest of the child to have visitation by considering:
  • The willingness of the grandparent(s) to encourage a close relationship between the child and the parent(s);
  • The preference of the child, if the child is determined to be of mature enough to express a preference;
  • The mental and physical health of the child;
  • The mental and physical health of the grandparent or grandparents;
  • Evidence of domestic violence inflicted by one parent upon the other parent or the child. If the court determines that evidence of domestic violence exists, visitation provisions shall be made in a manner protecting the child or children, parents, or grandparents from further abuse;
  • Other relevant factors in the particular circumstances, including the wishes of any parent who is living.*4
Note:  If the court finds that the grandparent(s) can afford it, the court may appoint a guardian ad litem for the child at the grandparent's expense.  Also, if the grandparent's  son/ daughter gave up or lost legal custody of the grandchild, or has abandoned the child financially, the grandparent cannot be granted visitation unless the grandparent already has an established relationship with the child and the court finds that visitation with the grandparent is in the best interests of the child.*5

* Alabama Code § 30-3-4.1(c)
*1 Alabama Code § 30-3-4.1(b)
*2 Alabama Code § 30-3-4.1(e)
*3 E.H.G. and C.L.G. v. E.R.G. and D.W.G., 2010 WL 876819 (Ala.Civ.App. 2010)
*4 Alabama Code § 30-3-4.1(d)
*5 Alabama Code § 30-3-4.1(f),(g)

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