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Know the Laws: Alabama

UPDATED July 23, 2013

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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.

The custody process

back to topHow will a judge make a decision about custody?

When deciding about child custody, a judge will try to make a decision that s/he thinks is in the best interest of the child.  The judge will look at many factors to decide what is in the best interest of the child, including:

  1. The gender and age of the child;
  2. The emotional, social, moral, material, and educational needs of the child;
  3. The home environments offered by each party;
  4. The characteristics of those seeking custody, including age, character, stability, and mental and physical health;
  5. The capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the child;
  6. The interpersonal relationship between the child and each parent;
  7. The interpersonal relationship between the child and any other children of either party;
  8. The effect on the child of disrupting or continuing the current custody situation;
  9. The preference of the child, if the child is old and mature enough;
  10. The report and recommendation of any expert witnesses or other independent investigator;
  11. Any available alternatives; and/or
  12. Any other relevant matter that is proven by the evidence.*

If you are filing for custody, is may be a good idea to prepare yourself with as much information as possible about the other parent and yourself. This includes information on behavioral patterns and financial information. You may want to collect any additional information you think can show the judge that the custody arrangement you want is in the child's best interest.

While judges are to consider the option of joint custody in every case, there is no presumption in favor of it unless the parents agree to it.  When deciding whether joint custody is in the best interest of the child, a judge will look at:

  • Whether you and the other parent agree to joint custody;
  • Whether you and the other parent could cooperate in making decisions about the child's life;
  • The ability of the parents to encourage a good, loving relationship between the child and the other parent;
  • Whether either parent has committed, or may commit, child abuse, domestic abuse, or kidnapping;
  • Where each parent lives and how practical that makes joint custody; and
  • Other factors that a judge thinks may affect the best interest of the child.**
Before a judge orders joint custody, the parents (or if they can't agree, the court), are supposed to design a joint parenting plan to address the issues concerning the child.

In Alabama, if the judge determines that there has been domestic abuse, the judge is supposed to assume that it is not in the best interest for the abuser to get sole or joint custody.  However, the abuser still has an opportunity to show the judge that it would be in the child’s best interests to give him or her custody. If the judge is convinced, he or she may give the abuser sole and/or joint custody of the child.  For more information of how domestic violence affects a custody case, read Can a parent who committed violence get custody?

* Ex parte Christopher P. Devine, 398 So. 2d 686 (Supreme Court of Alabama 1981)
** Alabama Code § 30-3-152

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back to topDo I need a lawyer?

While you have a right to file for custody without an attorney, it may be difficult for you to file a proper petition without the help of a lawyer.

Child custody cases are often very complicated.  The laws that control custody cases, the procedures involved, and the specific relevant facts can become very confusing to parents.  An experienced lawyer could be very helpful to you in your case. 

Be aware that court officials in some counties may tell you that you cannot file without hiring an attorney and some judges may be harder to work with if you do not have one.   Also, if the other parent has a lawyer, this may make it more difficult for you.  To find a lawyer or legal aid program in your area, please visit the AL Finding a Lawyer page.  If you and your children are victims of domestic violence, you might want to ask the attorney you are considering about his or her experience with child custody cases and with issues of domestic violence.

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back to topIn which state do I file for custody?

You can usually only file for custody in Alabama if Alabama is your child’s “home state.”   However, there are exceptions to the “home state” rule, which are explained in the next section, Are there exceptions to the home state rule?

Alabama usually qualifies as your child’s “home state” if:

  • Your child lives in Alabama, and has lived there for at least 6 months in a row before you file for custody,
  • Alabama is the last state where your child lived for at least 6 months in a row before you file for custody, or
  • your child is less than six months old but has lived in Alabama since birth.

Leaving Alabama for a short period of time, such as going on vacation, usually does not change its status as a child’s home state.

If your child recently moved from Alabama to another state, generally you cannot file for custody in that new state until your child has lived there for at least 6 months. Until then, you or the other parent can start a custody action in Alabama, as long as your child has most recently lived there for at least 6 months. There are some exceptions.  Please see Are there exceptions to the home state rule? for more information.

If you and your child recently moved to Alabama from another state, generally you cannot file for custody in Alabama until you have lived there for at least six months. Until then, you or the other parent can start a custody action in the state you moved from, as long as your child has most recently lived there for at least six months. There are some exceptions.  See Are there exceptions to the home state rule?

* Alabama Code § 30-3B, Uniform Child Custody Jurisdiction and Enforcement Act.

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back to topAre there exceptions to the home state rule?

Yes. There are exceptions to the "home state rule."

In some cases, you can file for custody in a state where the children and at least one parent have "significant connections." Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction (control) over the case. This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this. To find a lawyer or legal aid program in your area, please visit the AL Finding a Lawyer page.

You can also file for temporary emergency custody in a state other than the home state if the child is present in the state AND the child has been abandoned, OR it is necessary in an emergency to protect the child because threats with mistreatment or abuse.*

 * Alabama Code § 30-3B

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back to topWhat are the steps for filing for custody?

It depends on the details of your situation. To find out what the process will be like for you, please consult a lawyer in your area. Please visit our AL Finding a Lawyer page to find legal help in your area.

Generally, if the parents are married and are going through a divorce, one or both of the parents usually files for custody as part of a divorce action.

If the parents are already divorced, a petition for a change in custody can be filed in the county where the divorce was issued.

If the parents were never married, either parent can file for custody in the county in which the child has been living for at least six months.

In all cases, you will have to:

  • draft or have someone draft a petition letting the court and the other party know what you want and why;
  • turn your paperwork into court; and
  • pay a filing fee (or obtain a waiver based on your inability to pay it).

Once you file your paperwork, you may have a hearing in front of a judge, or there may be other preliminary steps you must take. To find out more about how the process works in your area, please contact a lawyer.  AL Finding a Lawyer.

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back to topCan I get support for myself and my children?

If you have temporary custody, the judge can order the other parent to pay temporary support to both you and your children. Later, as part of the custody hearing, the judge may also order child support. The amount will follow the child support guidelines, unless the judge finds good reason to vary from the guidelines.  To look at Alabama guidelines, go to the Alabama Courts website.

If the judge thinks that the guidelines would be "unjust or inappropriate," this is enough to order an amount other than what is in the guidelines if there is either:

  • A fair, written agreement between the parties establishing a different amount and stating the reasons for it; or
  • A decision by the judge the guidelines would be unjust or unfair.*
Also, the judge can stray from the guidelines (although s/he is not required to) if:
  • The parent paying support has physical custody of the child for much longer periods of time than is normally seen by the court due to a shared physical custody or visitation agreement;
  • One parent has extremely high transportation costs for purposes of visitation;
  • There are college education expenses that come up prior to a child's reaching the age of 18;
  • The child has assets or gets unearned income;
  • There are other facts or circumstances that the court finds contribute to the best interest of the child that is receiving the child support; or
  • There is evidence of other reasons that justify straying from the guidelines.*
* Alabama Rules of Judicial Administration, Rule 32

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back to topCan I get temporary custody as a part of a protection from abuse order?

Maybe. If you get a Protection from Abuse ("PFA") order, the judge can give you temporary custody of your children and can set up visitation for the other parent, either supervised or unsupervised.*  Be sure to tell the judge that you want custody during your protective order hearing so that the judge can take your request into consideration.  However, custody and visitation orders that are granted in a PFA expire when that order expires. The judge may also extend temporary orders as s/he feels is necessary. 

For more information on PFAs and how to get one, go to our Protection from Abuse Orders page.

* Alabama Code § 30-5-7

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