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Know the Laws: Alabama

UPDATED July 28, 2016

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Below you will find information about custody in Alabama.  Please consider getting help from an organization in your area before proceeding with court action.  To find an organization, please go to the Where to Find Help tab at the top of this page.

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 file for visitation?

A grandparent can file a petition for visitation in circuit court in the county where the grandchild lives or in any other court where there's already a custody, divorce, or other proceeding related to the grandchild if any of the following circumstances exist:  

  • an action for a divorce or legal separation of the parents has been filed or finalized;
  • the parents' marriage ended when one parent died;  
  • the child was born out of wedlock and the petitioner is the mother’s parent (maternal grandparent of the child); or
  • the child was born out of wedlock and the petitioner is the father’s parent (paternal grandparent of the child) and the father’s paternity has been legally established;
  • an action to terminate the parental rights of one or both parents has been filed or the parental rights of a parent have already been terminated by court order.  However, if the Department of Human Resources was the petitioner in the petition to terminate the parental rights, the grandparents related to the parent whose rights were terminated cannot get visitation rights.* 

Note: If the child is adopted, an eligible grandparent may still be able to seek visitation only if the adoptive parent is the child’s step-parent, grandparent, sibling, half-sibling, aunt or uncle.  If the child is/was part of an adoption proceeding, the visitation petition is filed in probate court, not circuit court.**

Any grandparent (or any set of married grandparents) can petition for visitation only once during any two-year period unless s/he can prove “good cause” to file more than once.  After visitation rights have been granted to any grandparent, the legal custodian, guardian, or parent of the can to petition the court for to revoke (end) or amend the visitation rights if there has been a material change in circumstances since the grandparent visitation order was made.***  For information on how a judge will make the decision about whether or not to give visitation to a grandparent, go to What factors will a judge consider when deciding if a grandparent can get visitation?

* Alabama Code § 30-3-4.2(b),(i)(3)
** Alabama Code §§ 30-3-4.2(b),(i)(1); 26-10A-30
**​* Alabama Code § 30-3-4.2(g)

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back to topWhat factors will a judge consider when deciding if a grandparent can get visitation?

If the parent decides to limit or deny visitation to the grandparent, the judge will assume that the parent is acting in the child’s best interest.  In order to convince the judge to go against the parent’s wishes and grant visitation, the grandparent must prove:

  1. that s/he has established a significant and viable relationship with the child by proving:
    • the loss of the relationship between the grandparent and the child is likely to harm the child; or
    • within the past three years before filing the petition, any of the following are true:
      • the child lived with the grandparent for at least six consecutive months (with or without a parent present);
      • the grandparent was the caregiver to the child on a regular basis for at least six consecutive months; or
      • the grandparent had frequent or regular contact with the child for at least 12 consecutive months, which resulted in a strong and meaningful relationship with the child;* and
  2. that visitation is in the best interest of the child by proving all of the following:
    • the grandparent has the capacity to give the child love, affection, and guidance;
    • the loss of an opportunity to maintain a significant and viable relationship with the grandparent has caused (or is reasonably likely to cause) harm to the child; and
    • the petitioner is willing to cooperate with the parent(s) if visitation with the child is allowed.**

* Alabama Code § 30-3-4.2(c),(d)
** Alabama Code § 30-3-4.2(c),(e)

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