What are the steps for filing for custody?
Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often times, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or your fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.
If you decide to file in court for custody, the process usually looks similar to this:
- File for custody. You may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:
- If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
- If you are a married parent who is not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
- If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.
- Prepare for the custody process
The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence on our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.
During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about which parent gets custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.
- Prepare for trial
There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and to cross-examine the other party to help the judge make a decision.
If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:
- communications between the parents can only be in writing;
- all communications can only be related to the child; and
- a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.
You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child as to avoid future conflicts.
- Options if you lose the custody case
There could be a couple of options that are filed immediately after the judge makes the custody order:
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due a judge’s error.
A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. If you are already divorced, a petition for a change in custody can be filed in the county where the divorce was issued.
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. You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge wlil consider, child support, and moving out of state with your child.
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
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.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
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