At Caldwell Wenzel & Asthana, Fairhope family law attorneys, we recognize that legal issues involving family matters are often disconcerting, sensitive, and emotional. Accordingly, we respect client concerns regarding a desire for privacy in Family Law disputes and the delicacy with which these matters must be handled. While we cannot promise that any Family Law issue will be stress free, we will offer candid and timely advice and zealously advocate on your behalf in order to help achieve your Family Law objectives. We deal with Family Law matters in the Mobile and Baldwin County areas. Our Family Law Practice provides the following services:
The Alabama Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies to cases in which a custody determination is made or which impact access to a child. This includes actions such as divorce, legal separation, neglect, dependency, guardianship, paternity, termination of parental rights, and protection from abuse wherein matters concerning the legal custody, physical custody and visitation of children are determined.
Pursuant to Alabama Code § 30-3B-201, in order for courts in Alabama to make a child custody determination binding on a party, the courts must first have personal jurisdiction over that party. In most cases, an Alabama court has personal jurisdiction to make an initial child custody determination only if one of the following is true:
(a)Alabama is the home state of the child on the date that the child custody proceedings were commenced. Alabama Code § 30-3B-102 defines “home state” to mean the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Where the child is under the age of six months, “home state” means the state in which the child lived from birth with their parent.
(b) Alabama was the home state of the child within six months before the commencement of the child custody proceeding and at least one of the parents continues to live in Alabama.
(c)A court of the home state of the child has declined to exercise jurisdiction on the ground that the state of Alabama is the more appropriate forum to adjudicate the matter of child custody and the child and at least one of the parents have a significant connection with Alabama (more than mere presence) and there is substantial evidence pertaining to the child’s care, protection, training, and personal relationships in Alabama.
(d) A court of another state does not have jurisdiction under (a) and (b) and the child and at least one of the parents have a significant connection with Alabama (more than mere presence) and there is substantial evidence pertaining to the child’s care, protection, training, and personal relationships in Alabama. In other words, if neither Alabama nor any other state is the home state of the child at the time of commencement of the proceeding and neither Alabama nor any other state was the home state of the child within six months before the commencement of the proceeding, and there is a significant connection with and substantial evidence of such connection of the child and at least one parent with Alabama, Alabama courts could have personal jurisdiction over the child custody proceeding.
(e)All courts of other states that could have personal jurisdiction have declined to exercise such jurisdiction on the ground that Alabama is the more appropriate forum to determine child custody.
(f)There is no court of any other state that can meet the tests above to obtain personal jurisdiction over the child custody proceeding.
Based on this information, it is relevant to note that a child’s physical presence in the state of Alabama is not necessary in order for an Alabama court to adjudicate over the matter of child custody.
If you have any questions relating to the required jurisdiction of an Alabama court to adjudicate child custody proceedings, please call our child custody lawyers at (251) 948-2168 for more information.
Custody – Types of Child Custody Awards
The best interests and welfare of a child inform custody law and typically, custody consists of two parts – legal custody and physical custody. Legal custody pertains to the ability of parents to make important decisions for the child, including, but not limited to, education, health care and religion. Physical custody is defined as the physical care and supervision of a child.
If the custody award pertains to sole custody, it implies that the parent who has been awarded sole custody of the child has both, sole legal custody and sole physical custody. Sole legal custody indicates that one parent has the exclusive rights and responsibilities to make major decisions for the child, including, education, health care, and religion. Sole physical custody means that only one parent has actual physical custody of the child while the other parent may be awarded rights of visitation.
Under joint legal custody, both parents equally share the rights and responsibilities to make decisions for the child. In some situations, the court may designate one parent to make decisions on a certain matter while both parents make decisions equally on all other matters. Generally, joint physical custody does not mean that each parent shall have an equal amount of time of physical custody. Instead, it means that physical custody is shared by parents such that the child has substantial and regular contact with each parent.
Sometimes, courts and attorneys use the terms “primary physical custody” or just “primary custody” in association with joint custody orders. “Primary physical custody” or “primary custody” must be interpreted to mean that the parents have been awarded joint legal custody but one parent has been awarded sole physical custody.
Custody – Factors Considered in Determining Custody
Alabama Code § 30-3-152 requires the courts in the state of Alabama to in every case consider joint custody. That being said, a court may consider the viability of a joint custody order and then decide to award any other form of custody. Any form of custody award is determined on the paramount premise of the best interests and welfare of the child and factors such as the following are considered:
(a)Age and sex of the child, needs of the child and each parent’s ability to provide for those needs.
(b) The agreement or lack of agreement of the parents on joint custody.
(c)The past and present ability of the parents to cooperate with each other and make decisions jointly.
(d) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
(e)Any history of or potential for child abuse, spouse abuse, or kidnapping.
(f)The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.
Custody – Custody Awards to Non-Parents
In Alabama, there is a presumption that a natural parent has a prima facie right to the custody of his or her child as opposed to the custody of a non-parent. This presumption is premised on the best interests of the child but can however be overcome upon a finding that such parent is guilty of neglect and misconduct, that he or she is an improper custodian of the child, and the best interests of the child will be served by granting custody to a non-parent.
If you are the natural parent of a child and require legal advice or a non-parent who is considering whether to petition the court to obtain custody of a child, please contact our child custody lawyers for more information.
Custody – Modification of Custody Decree
The collective purpose of the Alabama Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the federal Parental Kidnapping Prevention Act is to reduce the interstate conflict and competition on child custody, reconcile both the state and federal laws, and to make custody decrees rendered in one state enforceable throughout the country.
In accordance with the UCCJEA and the purposes laid out above, once an Alabama court which has personal jurisdiction has made an initial custody judgment, the Alabama court continues to have sole and exclusive jurisdiction to modify the custody order until one of the following occurs:
(a)The Alabama court that rendered the initial child custody order determines that neither the child nor the child and one parent have a significant connection with Alabama and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
(b) The Alabama court that rendered the initial child custody order or a court of another state determines that the child and the child’s parents do not presently reside in Alabama.
Conversely, if a child custody order was rendered by a court of another state, an Alabama court cannot modify this determination unless one of the following occurs:
(a)The Alabama court has temporary emergency jurisdiction to modify a child custody determination rendered by another state on the basis that the child is present in Alabama and the child is abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
(b) The Alabama court has jurisdiction to make an initial determination of child custody and the court of the other state determines it no longer has continuing, exclusive jurisdiction over the parties.
(c)The Alabama court has jurisdiction to make an initial determination of child custody and the court of the other state determines that the Alabama court would be a more convenient forum for child custody determination.
(d) The Alabama court has jurisdiction to make an initial determination of child custody and the Alabama court or a court of the other state determines that the child and the child’s parents do not presently reside in the other state.
Once it is clear that the Alabama court has jurisdiction to modify a child custody determination, the courts in Alabama use the McLendon standard to determine whether a modification of custody is warranted. Pursuant to the McLendon rule, the non-custodial parent seeking a change in custody must show that:
(a)The non-custodial parent is fit to be the custodial parent;
(b) Material changes that affect the child’s welfare have occurred since the original award of custody; and
(c)The positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child.
This standard is an extremely high standard and reflects the intention of the courts to protect a child’s need for continuity and condemn frequent disruptions.
In most cases, where primary care and custody of a child is awarded to one parent, courts shall award the non-custodial parent visitation on the basis that the best interests and welfare of a child is furthered if the child has frequent contact and regular visits with the non-custodial parent. However, courts can waiver from this premise when evidence indicates that the non-custodial parent has not shown the ability to act in the best interests of the child.
Trial courts in Alabama have broad discretion when setting visitation and in determining visitation, courts balance the rights of the parents with the best interests of the child. If a court figures that the health, welfare or safety of the child is endangered when in the custody of the non-custodial parent, the court may order some restrictions on visitation or even suspend visitation in order to target the specific concern. For instance, evidence of the non-custodial parent’s conduct endangering the child, history of neglecting or ignoring the child, or prior violations of court orders pertaining to custody or visitation could justify a court in placing restrictions on visitation.