Know the Laws: Alabama
UPDATED October 29, 2012
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Custody is the legal responsibility for the care and supervision of a minor child (under the age of 19) and about who can make the decisions necessary to fulfill that responsibility. When a court issues a custody order, it will generally address it in two parts: legal custody and physical custody.*
*Alabama Code § 30-3-151
There are many reasons people choose not to get a custody order from a court. Some people decide not to get a custody order because they do not want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents may think going to court will provoke the other parent, or they are worried that the other parent might get custody or visitation.
However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time -- and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to AL Finding a Lawyer to seek out legal advice.
The term “legal custody” refers to which parent has the primary responsibility and authority to make major decisions about the child’s life including, but not limited to, eduction, health care and religion. There are two types of legal custody:
Joint legal custody involves the parents communicating with each other and compromising on decisions about the child. Therefore, this is usually not a good solution for victims of domestic violence since the abuser usually has power and control over the victim and it might not be safe for the victim to disagree with the abuser. If the victim cannot have equal input and power in the relationship, the decisions about the child that are supposed to be made jointly are often made by the abuser alone. Similarly, shared or joint physical custody could also be dangerous where there is domestic violence.
*Alabama Code § 30-3-151
The term “physical custody” refers to the parent who actually has primary physical responsibility and control of the child. Normally the parent who has physical custody is the parent with whom the child lives most of the time. When one parent has "sole physical custody," the other parent usually gets visitation with the child. The parent who has sole physical custody receives child support from the other parent. "Joint physical custody" refers to when physical custody is shared by the parents in such a way that the child has frequent and substantial contact with each parent. Joint physical custody does not necessarily mean the child spends equal amounts of time with each parent. Parents may have joint physical custody while one or the other has sole legal custody.
* Alabama Code § 30-3-151
Visitation is the right to spend time with the child. Except where a judge finds that it would be unsafe or otherwise harmful to the child (or the custodial parent), judges will usually grant some form of visitation rights to parents who do not have physical custody of their children.
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.
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:
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:
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)
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)
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:
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.
(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:
*Ex parte Christopher P. Devine, 398 So. 2d 686 (Supreme Court of Alabama 1981)
** Alabama Code § 30-3-152
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.
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:
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.
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. Uniform Child Custody Jurisdiction and Enforcement Act.
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:
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.
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 www.alacourt.gov/ChildSupportObligations.aspx
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:
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 How to get a Protection from Abuse order.
* Alabama Code § 30-5-7
Because custody is ongoing and the issues around it may change over time, an order is never permanent. If you have a custody order already in place, you can ask the court to make changes to it or modify it.
Generally, the judge will not change the custody order unless there has been a substantial change in circumstances from when the original custody decision was made. In Alabama, if a judge finds that domestic or family violence has occurred since the last custody decision, that may be considered to be a substantial change in circumstances.*
To modify a custody order, you will need to go to the court that issued the order, even if you have moved. Generally, once a court has jurisdiction, that court will keep jurisdiction, even if you move. If you move to a new county, you may be able to move your case to the new county if the other parent and your children have moved to that new county, too. If you are the custodial parent, and you and your child have moved to another county for more than three years, you have a right to have future custody decisions made by a court in your new home county.**
If you have moved to a new state or if both parents and the child have moved away from the original state, you can ask the court to change the jurisdiction to the new state that you and your child are in. This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. Go to the AL Finding a Lawyer page to find legal help in your area.
* Alabama Code § 30-3-134
** Alabama Code § 30-3-5
Maybe. If you move to another state, you may be able to change the state where the custody case is being heard. You will have to ask the judge that is hearing the case to change the jurisdiction of your case. This is often complicated and, as with all custody issues, we recommend that you talk to a lawyer about this. To find a lawyer in your area please visit our AL Finding a Lawyer page.
It depends. You might not have a problem if taking the child out of state does not interfere with the other parent's custody or visitation rights or if the other parent gives written permission.
If it is safe for you to do so, it might be a good idea to let the other parent know your plans and the date you expect to return if you are leaving the state briefly so that the parent does not think that you have left the state to relocate with the child. Technically, under the law, you would not be considered to have "relocated" with the child unless you live somewhere else for more than 45 days. This does not apply to trips that are temporary in nature and do not effect a change in the child’s principal residence (main home) or to moves that happen because of the need to escape domestic violence.*
Note: The laws concerning moving and taking a child out of state are very complicated and, as with all custody issues, we recommend that you talk to a lawyer about this first before you leave the state. To find a lawyer or legal aid program in your area, please visit the AL Finding a Lawyer page.
* Alabama Code § 30-3-161(11)
Alabama law requires parents to notify anyone else who has custody or visitation rights to a child when the parent is planning to move with the child. The judge could order, however, that for victims of domestic violence or situations where the child's safety could be in danger, the parent planning to move could be excused from having to give the required notice. Also, the judge can order that the address and phone number of the child and/or victim not be made public in court.*
At least 45 days before you move, you usually have to inform the other parent, by certified mail, of the planned move and provide them with detailed information about the move, including contact information, your child's school information, when and why you are moving. The court may also require information about the other party's right to object.If you did not know (and it was impossible for you to know) about the move 45 days in advance and it is not reasonably possible to put off the move, the time limit to give notice is within 10 days after you know you will have to move.*1
Unless the parent objecting to the move has been found to have committed domestic violence or child abuse, there is an assumption that moving is not in the best interest of the child. You have to prove that it is in the best interest of the child to move and the judge will decide whether to allow the child to go.*4
Note: If the other parent has been abusive, you may not have to provide detailed information to the other parent. If you're concerned about your safety, talk to an expert before informing the other parent of your move. To find a shelter or an advocate at a local program, please visit the AL State and Local Programs page.
The law about parent and child relocation is very complicated. Violation of this law may give the judge reason to change custody to the other parent. We urged to seek the advice from an attorney before moving with a child. To find a lawyer or legal aid program in your area, please visit the AL Finding a Lawyer page.
* Alabama Code § 30-3-167
*1 Alabama Code § 30-3-165 (a) & (b)
*2 Alabama Code § 30-3-169.1(a)(b) & (c)
*3 Alabama Code § 30-3-162(b)
*4 Alabama Code § 30-3-169.4