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

¹ Ex 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)

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 you and your child. 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; and
• 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 is not a factor that the judge can use against the parent in making a decision as to custody or visitation.³

Note: The judge can 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. However, even though the judge cannot “order” the victim to attend, the law says that attending this counseling could be a condition of receiving custody or visitation.²

¹ Alabama Code § 30-3-132(a)
² Alabama Code § 30-3-135
³ Alabama Code § 30-3-132(b)

Aside from being convicted of a sex crime, a parent’s parental rights can be terminated if the judge finds that s/he is unable or unwilling to carry out parental responsibilities for the child, or if the parent’s conduct or condition makes him/her unable to properly care for the child. As in all custody cases, this decision must be made considering the child’s best interests.¹

If the other parent has abandoned the child for four months, there is what’s called a “rebuttable presumption” that s/he is unable or unwilling to act as the child’s parent.² This means that the judge will assume that this is true but the parent being accused of abandoning the child will have the chance to present evidence to change the judge’s mind at a court hearing.²

During a termination hearing, the judge will consider the following factors:

1. whether the parent abandoned the child;
2. any emotional illness, mental illness, mental deficiency, or excessive use of alcohol or drugs that makes the parent unable to care for the child;
3. whether the parent has committed or attempted to commit any of the following, or if the child is in clear and present danger of suffering from any of the following:
   
   1. torture;
   2. abuse;
   3. being cruelly beaten; or
   4. being otherwise maltreated;
4. whether the parent has been convicted of, and imprisoned for, a felony;
5. whether the parent has committed any of the following:
   
   1. the murder or manslaughter of another child;
   2. aiding, abetting, conspiring, or soliciting the murder or manslaughter of another child; or
   3. felony assault or abuse that results in serious bodily injury to another child;
6. whether the child has suffered serious physical injury in circumstances that indicate that the injury resulted from the parent’s intentional actions or willful neglect;
7. whether there have been reasonable efforts by the Department of Human Resources or a child care agency to rehabilitate the parent;
8. whether the parent’s parental rights to the child’s sibling have been involuntarily terminated;
9. whether the parent has failed to provide for the child’s material needs, or to pay a reasonable portion of child support;
10. whether the parent has failed to maintain regular visits with the child under a plan created by the Department of Human Resources or a child care agency;
11. whether the parent has maintained consistent contact or communications with the child;
12. whether the parent has tried to adjust his/her circumstances to meet the needs of the child according to an agreement made with the Department of Human resources or a child care agency; and
13. whether the child has developed significant emotional ties to current foster parents, including:
    
    1. how long the child has lived in a stable and satisfactory environment;
    2. whether cutting the child’s ties with current foster parents goes against the child’s best interests; and
    3. whether the judge has found at least one other reason for terminating the abuser’s parental rights.¹

¹ Alabama Code § 12-15-319(a)
² Alabama Code § 12-15-319(d)

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)