Child Custody

Child custody can involve many complex legal and emotional issues.  An experienced family law attorney can help you navigate these waters.

Types of Custody:

     In Alabama, there are two types of custody that must be determined by agreement or by a Judge – legal custody and physical custody.  Legal custody generally involves the rights and responsibilities over major decisions concerning the child, such as education, medical, and religious training.  Physical custody involves the time a child is physically in the care of each parent.  Parents can agree to, or be awarded, sole or joint legal custody and sole or joint physical custody of their child.  Joint legal or joint physical custody of a child often indicates an equal division, but it does not necessarily have to be equal.  Similarly, sole legal or sole physical custody of a child implies that a parent is primarily in charge of the decisions or has primary physical custody of a child for more of the time.  The amount and type of visitation a non-custodial parent has varies from county to county, and depends on the specific circumstances of each case.

     In Madison County, Alabama, the Standard Custody Schedule and Parenting Clauses Court will typically require both parties to follow can be seen here:

Custody Schedule and Parenting Clauses

What Factors Does A Court Consider in Awarding Custody or Visitation to Parents?

     In an initial custody determination, the primary consideration is the best interest of the child.  In determining the best interest of the child, a court will considers a number of factors, such as who the primary caregiver of the child is, the moral character of the parents, the financial status of each parent, the stability and parenting plans of each parent, and, if they are old enough, the child’s preference.

What Common Issues Exist For Parents Who Live Together But Are Not Married?

     Some common issues for parents of the child who live together but have decided not to “tie the knot” are:

• Proving paternity.
• Choosing a name that both parents can agree on
• Making sure the child can qualify for government benefits, insurance and other policies.
• Child custody and visitation in the event of a parental breakup

What Restrictions or Rights Do I Have If I Am Acting Like a Parent to My Partner’s Child but I’m Not Actually a Parent?

     In the event that a non-legal parent is serving as a parent to his or her partner’s child, the non-legal parent may find that he or she is unable to make certain decisions that a normal parent may be able to make. Signatures for medical documents or certain school-related documents can only be accepted from a legal guardian. Furthermore, legal parents always have priority in decision making over a non-legal parent.

     The easiest solution to these problems is to formally adopt the child.  Adoption makes you a legal parent of the child, with all the rights and responsibilities of parenthood.

Can The Parent With Custody Still Receive Child Support If They Are Unmarried?

     Yes, it is a basic principal of Alabama law that parents have a duty to support their minor children and that it is a fundamental right of minor children to receive that support. Child support is based upon the needs of the children and the incomes of the parents, not the marital status (or lack thereof) of the parents The only exception is in stepparent adoption of the child. In that case, the biological parents no longer have an obligation, financial or otherwise, to the child.

Who Can Claim the Child As a Dependent On Tax Returns?

     The IRS provides a set of rules to determine which parent may claim a child as a dependent on tax returns, when there is no agreement of the parties or order of the Court.  So in most divorce and paternity cases, the Court will set out whether one parent may claim a child, or if the parents will get to alternate years to claim a child.  This decision may have an impact on the amount of child support pursuant to Rule 32 of the Alabama Rules of Judicial Procedure.

If the parents are unmarried, only one parent can claim the child as a dependent on tax forms. This works on an annual basis, so the parents can work out a plan based on income, custody and/or financial needs.