For parents going through a divorce, the custody arrangement of any minor children is of fundamental importance. In addition, each state has its own procedure for determining when to award joint versus sole custody, and the degree to which a presiding judge has discretion, if any, over these matters. Although specific counties in Alabama may institute additional and varying administrative requirements, state laws govern custody arrangements and thus, are controlling in Clarke County.
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Alabama Children's Family Act
Child custody cases in Alabama are governed by the Children's Family Act of 2011. The somewhat unique law mandates joint custody unless one or both of the parents is deemed unfit. Where both parents are found to be fit, and the parents have not otherwise agreed upon a different arrangement, the court will provide that both parents have equal parenting time with the children.
Joint Custody and Decision Making
Under Alabama law, joint custody refers to legal and physical custody. Unless a parent is found unfit, each parent has equal say in making major decisions for the child. With shared legal custody, the parents have equal rights and responsibilities regarding issues such as health care, religion and extracurricular activities. In Alabama, joint physical custody means a child has "substantial and frequent contact with each parent." In other words, the child lives with each parent for a substantial and pre-determined period of time, although not necessarily for equal durations.
In order to override Alabama law and have sole custody, you need to provide clear and convincing evidence that the other parent is unfit. Under the Children's Family Act, a parent is only considered unfit if that parent fails to provide for the emotional and physical well-being of a child, to the extent that it would seriously harm the child. The court will consider several factors to indicate unfitness, such as abuse, mental illness, use of illegal drugs or felony convictions. Additionally, the court my consider a parent unfit if she fails to maintain consistent communication or parenting time as allowed in a parental agreement.
On rare occasions where joint custody is not awarded and the judge instead awards sole custody to one parent, the non-custodial parent usually has visitation. When one parent has custody, the children will live at the custodial parent's home, while the other parent may be granted time to spend with the children. The court has discretion to limit parent-child contact, depending on the particular scenario. Similarly, the court may set a specific schedule for visitation, or provide for more flexible scheduling.