Legal Information: Alabama

Custody

Updated: 
January 3, 2019

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:

    1. 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
    2. 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)