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:

1. the gender and age of the child;
2. the emotional, social, moral, material, and educational needs of the child;
3. the home environments offered by each party;
4. the characteristics of those seeking custody, including age, character, stability, and mental and physical health;
5. the ability and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the child;
6. the interpersonal relationship between the child and each parent;
7. the interpersonal relationship between the child and any other children of either party;
8. the effect on the child of disrupting or continuing the current custody situation;
9. the preference of the child, if the child is old and mature enough;
10. the report and recommendation of any expert witnesses or other independent investigators;
11. any available alternatives; and
12. 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

If a parent decides to limit or deny visitation to a 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;¹ and
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)

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)

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 protection order hearing so that the judge can take your request into consideration. However, custody and visitation orders that are granted in a PFA order expire when the order expires. For more information on PFA orders and how to get one, go to our Protection from Abuse Orders page.

¹ Alabama Code § 30-5-7