Alabama Divorce FAQs – Parenting

This is about custody and visitation after divorce in Alabama, including the effect on custody and visitation of misconduct of the parents, mental health of the parents, and the rights of grandparents in Alabama.

This information is from me, Lee Borden, the webmaster here at Divorceinfo.com. You can click here to read about me or here to read about my law firm, Alabama Family Law Center.

How does custody get decided as between a parent and a third party?

A child’s natural parent has a prima facie right to the custody of that child. When a third party seeks to obtain custody over a parent’s objections, he or she must prove that the parent is unfit for parenthood. The presumption is overcome, however, by evidence of neglect or abuse on the part of the parent. And the presumption no longer applies when custody has already been awarded to a non-parent, either because the natural parent voluntarily gave up custody or because the court awarded it to the non-parent. In this case, the natural parent must show that a change would materially promote the child’s best interest.

How does custody get decided as between parents?

Before 1981, Alabama presumed that young children, particularly young girls, belonged with their mothers. In that year, however, the Alabama Supreme court struck down this “tender years” doctrine as unconstitutional in the landmark case of Ex parte Devine.

The parties now stand (at least theoretically) on an equal footing in a custody determination. The deciding factor is now simply the best interest and welfare of the child.The Devine court listed 12 factors:

Sex and age of each child.
The emotional, social, moral, material, and educational needs of each child.
The respective home environments offered by each party.
The characteristics of each party seeking custody, including age, character, stability, mental and physical health.
The capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children.
The interpersonal relationship between each child and each parent.
The interpersonal relationship between the children.
The effect on the child of disrupting or continuing an existing custodial status.
The preference of each child, if the child is of sufficient age and maturity.
The report and recommendation of any expert witnesses or other independent investigator.
Available alternatives.
Any other relevant matter the evidence may disclose.

Lee’s note: the Devine factors may be the theoretical standard, but in reality, mothers still enjoy a clear preference in contested custody cases. As a practical matter, a father wishing to establish custody over the objection of the mother probably has to prove she’s done something wrong in her parenting. You can take a look at Child Custody in the Real World to get an idea of the kinds of arguments people use about this.

This takes the form of showing that she has engaged in a continuing pattern of behavior that either places the children in repeated danger (such as driving drunk, waving loaded handguns around, or leaving very young children unattended for extended periods) or communicated to the children some signal about how to live their lives that’s dreadfully incorrect (such as repeatedly offering them illegal drugs or engaging in promiscuous sex in their presence). Absent a persuasive showing of one or both of these behaviors, most judges in Alabama seem reluctant to wrest custody away from a mother who wants it.

Custody is in the sound discretion of the trial court. Under the “ore tenus” rule, the court of civil appeals, which is the court of first resort for appealing domestic relations matters in Alabama, will presume that the trial court correctly applied its discretionary authority to act in the children’s best interests.

What’s the terminology for custody?

Alabama speaks in terms of “sole custody” and “joint custody.” “Sole custody” means one parent makes all the key decisions affecting the child, and it means that the child lives with one parent. Effective for divorces filed after January 1, 1997, the term “Joint custody” now means both “Joint Legal” custody and “Joint Physical” custody. The text of the new Joint Custody Statute is here on the web site, if you want to see it.

Is there a presumption in favor of not changing custody arrangements?

Yes. Alabama follows the so-called McLendon rule. The gist of the McLendon rule is that once a child has been living in a particular custody arrangement, the court will change that arrangement only if it sees a compelling reason to do so.

What effect does the misconduct of one of the parents have on custody?

Alabama courts consider the fault of the parties in determining custody. Mere adultery on the part of one of the parties, however, does not result in an automatic award of custody to the other. The key question is not simply whether adultery or other wrongdoing has occurred, but rather whether the behavior complained of has had (or presumably would have) a detrimental impact on the child.

The same analysis governs in cases of cruelty to the other spouse, drunkenness, marijuana use, homosexuality, and religious beliefs and practices. That is, the court will consider the conduct of one of the parties in determining custody, but the primary question will be not simply whether questionable or immoral conduct occurred, but rather what effect that behavior has had and/or might have in the future on the children.

What effect does the mental health of one of the parents have on custody?

Serious emotional disturbance and psychiatric disorders are relevant factors in custody determinations. If both parents struggle with mental health problems but only one seeks professional help for the problem, the refusal of the other to get help may be relevant in a custody decision. An opposing party can force a person’s therapist to testify about the person’s mental health. The psychiatrist-patient privilege is subordinated to the right of a child to a proper determination of custody.

What effect does the preference of the child have on custody?

The preference of a child for one parent over the other is a relevant consideration in custody, but not a controlling one. If the testimony of a competent child in a divorce action about his or her preference is relevant, otherwise admissible, and not merely cumulative, it must be admitted for purposes of determining custody. The older and more mature a child is, the more likely that child’s preferences will be given weight in deciding custody.

A good “rule of thumb” is that below age seven, a child’s preferences are irrelevant and that a party who attempts to elicit the testimony of the child as to preference for one parent over another does so at his or her peril. At age 14 or above, the preferences of the child will be given almost persuasive weight in a contested custody determination. Between ages 7 and 14, there is a sliding scale where the weight given the preferences of the child will vary depending on the age, maturity, and perceived independent judgment of the child.

How does visitation get set?

Trial courts have broad latitude in providing for visitation rights. Whether courts provide for a specific schedule or something as general as the right to visit the children and have them visit the noncustodial parent at reasonable times and places commensurate with the children’s health, education, and welfare is within the court’s discretion. Courts have discretion to provide for visitation rights, even if both parents had previously agreed to no visitation.

Courts realize that sometimes children simply parrot the wishes of a custodial parent, and they realize that sometimes the child is simply too immature to form a considered opinion. Sometimes children express fears or unwillingness to visit their other parent without any reasonable basis or foundation, and in these cases, the trial court is within its discretion to order visitation even over the child’s objections. Where one parent interferes with the orderly visitation schedule, the court may by statute require that parent to post a performance bond to guarantee compliance with the court’s orders.

Is there such a thing as “standard visitation”? If so, what is it?

Standard visitation varies from county to county. Here’s the standard visitation schedule for Jefferson County, worded as if it’s the Husband who has the visitation rights:

The first and third full weekends of each month from 6:00 p.m. on Friday until 6:00 p.m. the following Sunday (the first weekend of a month beginning on the first Friday of each month);
Each Christmas Day from 3:00 p.m. until 3:00 p.m. on the following New Year’s day;
Thirty-one (31) days during the summery (to be taken between June 10th and August 15th), to be selected by the Husband but upon written notice to the Wife at least thirty (30) days in advance of such visitation;
During the odd years, A.E.A. (Spring Break) vacation from 9:00 a.m. Saturday until the following Saturday at 6:00 p.m.
During the even years, Thanksgiving vacation from 6:00 p.m. Wednesday until Sunday at 6:00 p.m.
Every other birthday of the child(ren) from 6:00 p.m. on said date until 8:00 a.m. of the following day, beginning with the next birthday.
Every Father’s Day from 9:00 a.m. until 6:00 p.m. of the same day.
On the Husband’s birthday from 3:00 p.m. on said date until 8:00 p.m. of the same day.
At such other times as agreed upon between the parties.
Each parent shall keep the other informed on a current basis as to the primary residence address and telephone number where the child(ren) reside(s) or visit(s).

There are more restrictive arrangements that govern children younger than age one:

On the first and third Sunday of each month, at the place where (the child) lives. The periods of visitation shall be limited to three (3) hours in duration.
On Christmas Day, at the place where (the child) lives, for three (3) hours in duration in the afternoon.
The Husband shall notify the Wife of the hours of the intended visit not less than one week before the day of said visitation.
Any other reasonable times and places upon which the parties can agree.
Each parent shall keep the other informed on a current basis as to the primary residence address and telephone number where the child(ren) reside(s) or visit(s).

And a separate schedule for children ages 1-3:

On the first and third Sunday of each month from 8:00 a.m. until 6:00 p.m. (the first weekend of a month beginning on the first Friday of each month).
On the birthday of (the child) from 6:00 p.m. until 8:00 p.m.
On each Christmas Day from 10:00 a.m. until 6:00 p.m.
On Father’s Day from 12:30 p.m. until 6:00 p.m.
On the birthday of the Husband from 6:00 p.m. until 8:00 p.m.
Any such other times as agreed upon between the parties.
Each parent shall keep the other informed on a current basis as to the primary residence address and telephone number where the child(ren) reside(s) or visit(s).

Is there a standard visitation pattern when the non-custodial parent is in a different state from the child? If so, what is it?

The Husband shall have the right to have his minor children with him as follows:

Six (6) weeks during each summer at a time to be selected by the Husband, provided, however, that Husband shall have mailed by registered mail a written notice to the Wife of the dates of the intended visitation at least thirty (30) days prior to such visitation.
Each Christmas, beginning on December 26 at 9:00 a.m. and ending New Year’s Day at 3:00 p.m.
During the odd years, A.E.A. (Spring Break) vacation from 9:00 a.m. Saturday until the following Saturday at 6:00 p.m.
During the even years, Thanksgiving vacation from 6:00 p.m. Wednesday until Sunday at 6:00 p.m.
Any other reasonable times the Husband is in the town in which the minor children reside. Husband shall give 48 hours’ notice and the visitation should be no longer than 48 hours in duration.
During any periods of visitation, after the children reach the age of 12 years, the said children may travel by commercial airliner, provided:

The Husband shall pay all air fares for the transportation of said children.

The flights shall be either non-stop or direct and no change of planes will be involved until the children reach the age of 14 years.

All travel arrangements shall be made by the Husband.

The Husband shall notify the Wife not less than ten (10) days of the date of visitation, of the date, time, airline and flight number of the proposed carrier.

The Husband shall send to the Wife the round trip airline tickets or shall ensure that they will be at the air terminal ready for said children at time of departure.

The Wife shall be required to deliver the said children to the nearest commercial airport offering direct flight service to the airport at which the Husband will receive the children, not to be in excess of 150 miles from Wife’s residence. The Wife shall also pick up said children at the termination of the periods of visitation.

The Husband shall ensure that either he or the children notifies the Wife of the arrival of the children as soon as possible after the children are met by the Husband.

At the end of the period of visitation, the Husband shall notify the Wife of the dates, time, carrier, and flight number of the children’s return. The Husband shall notify the Wife twenty-four (24) hours prior to the time of departure.

On the return of the children, the Wife shall ensure that either she or the children notify the Husband of the children’s return.

The Husband shall enjoy the right of telephone visitation each Thursday, between the hours of 7:00 p.m. and 8:00 p.m. local time with the minor children, at the Husband’s expense. The Wife shall neither interfere with nor listen in or be party to the telephone conversation during the said period of time.

What rules govern cases where the custodial parent wants to move away with the children?

Alabama has a statute governing relocation, and it’s a doozy. The worst feature of the statute is its wordiness. Because it’s so long, many custodial parents will be intimidated from exercising their rights under it. The statute requires a custodial parent who’s contemplating moving away to give notice to the noncustodial parent. The noncustodial parent has the right o object to the move and to schedule a hearing. The statute creates a presumption in most cases that move is not in the best interest of the child.

What visitation rights do grandparents have, if any?

Grandparents have no common law rights to access with their grandchildren. They have a specific remedy by statute, however. Grandparents may intervene in a divorce action to provide for visitation rights, and they may seek to modify an original decree if their rights were not previously established. They may also enforce their rights by filing for contempt. The statute contemplates rights for grandparents to petition the court when one parent of the child dies and the surviving parent denies reasonable visitation rights, or when a grandparent is unreasonably denied visitation with the child for more than 90 days.

The statute gives grandparents the right to petition for visitation but doesn’t guarantee they’ll get it. Appellate courts have upheld the discretion of trial courts both to award visitation and to deny it. The appellate court has also on occasion reversed a trial court decision to provide for visitation rights for grandparents.

Recently the U.S. Supreme Court held that a grandparent visitation statute in another state intruded too much into the relationship between parents and their children and declared the statute unconstitutional. In the wake of that decision, the Alabama legislature redrafted the Alabama statute to make it less subject to constitutional challenge. You can click here to read the Alabama statute on grandparent visitation.