This section has information about custody in Alabama, including the definitions of legal and physical custody, the factors a judge will consider when deciding custody, how the custody process works, and how to notify the other parent if you want to move out of state with your children. In our general Custody page, we have information about custody that is not specific to any state. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.
Basic info and definitions
What is custody?
Custody is the legal responsibility for the care and supervision of a minor child, including the power to make major decisions about the child. Unlike other states where a "minor child" is a child who is less than 18 years old, in Alabama a "minor child" is a child who is less than 19 years old.1
1 See Alabama Code § 26-1-1(a)
2 See Alabama Code § 30-3-151
What is physical custody?
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. Also, the parent who has sole physical custody could receive 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, although not necessarily equal time with each parent. Parents may have joint physical custody while one parent has sole legal custody.
1 Alabama Code § 30-3-151
What is legal custody?
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:
- Sole legal custody refers to when one parent has these rights.
- Joint legal custody is when both parents have equal rights and responsibilities for these major decisions concerning the child.1
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 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.
1 Alabama Code § 30-3-151
What is visitation?
Visitation is the right to spend time with your child. Judges will usually grant some form of visitation rights to parents who do not have physical custody of their children except where a judge finds that it would be unsafe or otherwise harmful to the child (or the custodial parent).1 For more information, see Can a parent who committed violence get visitation?
1 See Alabama Code § 30-3-132
What are some pros and cons of getting a custody order?
There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for (and get) more custody or visitation rights than they are comfortable with.
If the other parent is presently uninvolved with the child, he or she may become involved just because a case was started. Also, if the other parent fights for custody, the case may drag on for a long period of time, which can be emotionally and financially draining. The court will look into many aspects of your personal life that you may prefer keeping private such as past mental health issues, your criminal record, substance abuse issues, and details of your personal relationships.
However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
- the right to make decisions about your child; and/or
- the right to residency (to have your child live with you).
Without a custody order, it is possible that both parents may share these legal rights, even if one parent takes care of the child every day. However, if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.
We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation. You can find legal help by clicking on the AL Finding a Lawyer page.
Should I start a court case to ask for supervised visitation?
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.
Who can get custody or visitation
Who can get custody? Can a non-parent get custody?
There is an assumption that it is in the best interest of the child to be with one or both of his/her natural parents.For a non-parent to get custody, the parents have to either give up their rights, 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.1
1Ex parte Jonathan M. Terry; 494 So. 2d 628, Supreme Court of Alabama (1986); see Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)
Can a parent who committed violence get custody?
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; and
- 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 judge cannot use this 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
Can a parent who committed violence get visitation?
A judge could grant visitation to a parent who committed violence only if the judge believes that proper measures can be taken to ensure the safety of both the child and the non-abusive parent. The judge must also take into account 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.1
When creating a visitation order, the judge can include protections, such as:
- ordering that your address be kept confidential;
- ordering the child to be picked up and dropped off in a protected place;
- prohibiting overnight visits;
- ordering supervised visits;
- ordering the abuser to pay for supervised visitation;
- ordering the abuser to pay (post) a bond, which usually means the abuser would have to deposit money with the court that could be used to locate the child if the abusive parent doesn't return the child;
- ordering the abuser to attend a batterer's treatment program;
- ordering the abuser to not use alcohol or drugs during the visitation and for 24 hours before the visitation.2
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.3
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.2
1 Alabama Code § 30-3-132(a)
2 Alabama Code § 30-3-135
3 Alabama Code § 30-3-132(b)
I am the child's grandparent. Can I file for visitation?
A grandparent can only file a petition for visitation 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; or
- 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.1
The petition would be filed in the circuit court in the county where:
- the grandchild lives; or
- there's already a pending custody, divorce, or other court proceeding related to the grandchild.1
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.2
Any grandparent (or any set of married grandparents) can petition for visitation only once during any two-year period unless the grandparent can prove there is a “good cause” to file more than once during that period.3
Note: If the judge does grant visitation rights to a grandparent, the child's parent, guardian, or legal custodian, can file a petition in court to end (revoke) or amend the visitation rights only f there has been a material change in circumstances since the grandparent visitation order was made.3 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?
1 Alabama Code § 30-3-4.2(b),(i)(3)
2 Alabama Code §§ 30-3-4.2(b),(i)(1); 26-10A-30
3 Alabama Code § 30-3-4.2(g)
What factors will a judge consider when deciding if a grandparent can get visitation?
If a parent decides to limit or deny visitation to the grandparent, the judge must 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 that:
- s/he has established a significant and sustainable (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;1and
- visitation is in the best interest of the child by proving all of the following:
- the grandparent has the ability to give the child love, affection, and guidance;
- the loss of an opportunity to maintain a significant and sustainable (viable) relationship with the grandparent has caused (or is reasonably likely to cause) harm to the child; and
- the grandparent is willing to cooperate with the parent(s) if visitation with the child is allowed.2
1 Alabama Code § 30-3-4.2(c), (d)
2 Alabama Code § 30-3-4.2(c), (e)
The custody process
How will a judge make a decision about which parent gets custody?
When deciding about child custody, a judge will consider the following factors in order to make a decision that s/he thinks is in the best interest of the child:
- the gender and age of the child;
- the emotional, social, moral, material, and educational needs of the child;
- the home environments offered by each party;
- the characteristics of those seeking custody, including age, character, stability, and mental and physical health;
- the ability and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the child;
- the interpersonal relationship between the child and each parent;
- the interpersonal relationship between the child and any other children of either party;
- the effect on the child of disrupting or continuing the current custody situation;
- the preference of the child, if the child is old and mature enough;
- the report and recommendation of any expert witnesses or other independent investigators;
- any available alternatives; and/or
- any other relevant matter that is proven by the evidence.1
Note: Past or future military deployments cannot be considered by the court as the sole factor when making (or modifying) a child custody or visitation determination.2
In addition, 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 judge cannot use this against the parent in making a decision as to custody or visitation.3 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.4 However, the abuser still has an opportunity to convince the judge otherwise. For more information on how domestic violence affects a custody case, read Can a parent who committed violence get custody?
1 Ex parte Christopher P. Devine, 398 So. 2d 686 (Supreme Court of Alabama 1981)
2 Alabama Code § 30-3-9 (a)
3 Alabama Code § 30-3-132(b)
4 Alabama Code § 30-3-133
How will a judge decide whether or not to order joint custody?
While judges will likely consider the option of joint custody in every case, the judge should not always assume that joint custody should be awarded in every case. The policy of Alabama is to ensure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children.1 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 each parent 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
- any other factors that a judge thinks may affect the best interest of the child.2
1 Alabama Code § 30-3-150
2 Alabama Code § 30-3-152
What are the steps for filing for custody?
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 type of custody you are seeking and why;
- file your paperwork with the court and have the other parent served; and
- pay a filing fee or request a fee waiver if you are low-income and cannot pay the fee.
Once you file your paperwork, you may have a hearing in front of a judge and will likely come back for multiple court dates. To find out more about how the process works in your area, please contact a lawyer. Please visit our AL Finding a Lawyer page to find legal help in your area.
Do I need a lawyer?
Although court officials in some counties may tell you that you cannot file without an attorney, you have a right to file for custody or to access the court in any manner without an attorney. However, child custody cases are often very complicated and it may be difficult for you to file a proper petition and to go through the court hearings without the help of a lawyer.
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 are a victim of domestic violence, having an attorney who is knowledgeable about domestic violence and custody matters is very important. For a list of questions to ask an attorney before you hire that attorney, you can read How do I pick the right attorney? What questions do I ask? in our Choosing and Working with a Lawyer section.
In 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.
Alabama usually qualifies as your child’s “home state” if:
- your child lives in Alabama and has lived in Alabama for the last six months in a row;
- your child no longer lives in Alabama but Alabama is the last state where your child lived for at least six months in a row; or
- your child is less than six months old but has lived in Alabama since birth.1
Leaving Alabama for a short period of time, such as going on vacation, usually does not change the child’s home state.2
1 See Alabama Code §§ 30-3B-201(a)(1); 30-3B-102(7)
2 Alabama Code § 30-3B-102(7)
Are there exceptions to the home state rule?
There are exceptions to the "home state rule." For example, it may be possible to file for custody in Alabama even if it is not the child's home state because:
- the child is present in Alabama and either:
- the child has been abandoned; or
- it is necessary (in an emergency situation) to protect the child because the child, a sibling, or parent of the child, is subjected to or threatened with mistreatment or abuse;1 or
- the judge determines that:
- the child and his/her parent have "significant connections" in the state; and
- there is substantial evidence in the state related to the child's care, protection, training, and personal relationship.2
This can be very complicated and there are additional exceptions that could apply. Please talk to a lawyer in Alabama and in the state where your child was previously living to figure out where to file. To find a lawyer or legal aid program in your area, please visit the AL Finding a Lawyer page or you can reach out to the Legal Resources Center for Violence Against Women for information if you are a victim of abuse.
1 Alabama Code § 30-3B-204(a)
2 Alabama Code § 30-3B-201(a)
Can I get temporary custody as a part of a protection from abuse order?
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.1 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. For more information on PFAs and how to get one, go to our Protection from Abuse Orders page.
1 Alabama Code § 30-5-7
After an order is in place
If a custody order is already in place, how can I get it changed?
Generally, the judge will not change a 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.1
To modify a custody order, you will usually need to go to the court that issued the order, even if you have moved. 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. Even if the non-custodial parent has not moved to a new county, but you (the custodial parent) and your child have lived in 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.2
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. See our Changing a final custody order page for more information. 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.
1 Alabama Code § 30-3-134
2 Alabama Code § 30-3-5
Can I change the state where the case is being heard?
If you have moved to another state and you want to try to modify your order in the new state where you are living, you will have to ask the judge that is hearing the case to change the jurisdiction of your case. To read more about modifying a custody order in another state, go to our Changing a final order page in our general Custody section. 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.
If there is a custody order in place, can I take my kids out of state?
For temporary trips out of state, 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; although it may not be considered a relocation if the trip is temporary in nature and doesn't change the child’s principal residence (main home) or if the absence is caused by the need to escape domestic violence.1 To read more about relocation, go to What do I have to do to relocate my child?
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.
1 Alabama Code § 30-3-161(11)
What do I have to do to relocate my child?
If you want to move your child out of his/her primary home for more than 45 days, this is usually considered to be a "relocation" under the law. To try to relocate, you must first notify anyone else who has custody or visitation rights by sending a letter via certified mail that has detailed information about the move, which is referred to in the law as "proposed change of the child's principal residence." The notice must include all of the following (if known):
- the new mailing address and street address;
- the new home telephone number;
- the name, address, and telephone number of the school that your child will attend;
- the date of the planned relocation;
- a statement of the specific reasons for the proposed move;
- a proposal for a revised schedule of custody and visitation;
- a warning to the non-relocating parent that an objection to the relocation must be made within 30 days of receipt of the notice or the relocation will be permitted.1
The letter must be sent at least 45 days before the planned move. However, 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 for you to delay the move, you must send the notice within 10 days after you know you have to move. However, for victims of domestic violence or in situations where the child's safety could be in danger, the judge could do away with the notice requirement. Also, the judge can order that the address and phone number of the child and the abused parent not be made public in court.1
Note: Unless the non-relocating parent has been found to have committed domestic violence or child abuse, the judge will assume that moving is not in the best interest of the child. So you will have to prove to the judge that it is in the child's best interests to move if the non-relocating parent objects.2 For more information on how the non-relocating parent can object to the move, see Can the non-relocating parent object to my plan to relocate my child?
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 encourage you to get advice from an attorney before moving with a child. To find a lawyer or legal aid program in your area, please visit our AL Finding a Lawyer page.
1 Alabama Code §§ 30-3-165(a), (b); 30-3-167
2 Alabama Code § 30-3-169.4
Can the non-relocating parent object to my plan to relocate my child?
If the custodial parent plans to move the child's primary residence for longer than 45 days, s/he has to send the required notice to the non-relocating parent. The non-relocating parent can then go to court to object to the planned move and can ask the judge to make an order preventing the move. (Non-parents who are entitled to visitation cannot "object" to the move but they can petition the court for a modification in their visitation rights.) Generally, the objection by the non-relocating parent has to be filed within 30 days of when s/he receives notice of the planned move.1
Unless the non-relocating parent has been found to have committed domestic violence or child abuse, the judge will assume that moving is not in the best interest of the child. So the custodial parent will have to prove to the judge that it is in the child's best interests to move if the non-relocating parent objects.2
However, the non-relocating parent cannot object to a move if both of the following are true:
- the child will be staying in the state; and
- after the move, child living would be:
- within 60 miles of the non-relocating parent; or
- closer to the non-relocating parent.3
1 Alabama Code § 30-3-169.1(a), (b), (c)
2 Alabama Code § 30-3-169.4
3 Alabama Code § 30-3-162(b)