Will I Get Custody?
What Is Child Custody and How Is It Determined?
One of the questions that comes up frequently in divorce cases is about custody. The award of custody has become more and more confusing as our legislature makes changes and case law changes to support more forms of custody.
Below is a breakdown of custody in Madison County (and it’s surrounding areas) and how it’s evolved over the years. The reason it’s evolution is important is because you are going to meet someone who has a form of custody that may or may not be available now. For instance, there used to be a doctrine called, “the Tender Years Presumption” which basically said that all children under a certain age should go to the Mother. I have Dads that come in and say, “there is no way I am getting custody because of their age.” That’s just not true.
When I first began practicing, it was customary for one parent to get custody. Legal and physical. Which meant, the parent who was awarded custody would have all the decision making, get child support, get the tax deduction, and the parent who didn’t have custody would get visitation.
After that, the legislature changed it and joint legal custody was the standard. This means equal rights to school records, medical records, information about the child’s welfare, and activities. The parent with primary custody was tasked with sharing information about the child or children with the non-custodial parent. This didn’t change things too much. The custodial parent still had the primary decision- making authority, received child support, the tax deduction (unless agreed otherwise), and the non-custodial had periods of visitation.
Next came the advent of joint legal and physical custody. This form of custody awards equal rights and responsibilities between the parents. If there a tie breaker is needed, the six areas of legal custody are awarded so that if needed, one parent can decide. These are: Civic, cultural, academic, extracurricular, religious, and medical. The time can be equally divided between the parents in this form of custody or it can be a slightly different split. Child support may or may not be awarded in this case. The tax deductions are usually split.
Joint legal and physical custody is the “preferred” custody designation BUT and that’s a big but, there are so many factors that can come into play. The bottom line is, what’s in the best interest of the child. This is the standard in original custody cases (which means the first time custody is decided by the court). Some Judges will not award joint custody. Some Judges will almost always award joint custody. And no, we can’t pick the Judge.
It’s definitely NOT as clear cut as time has gone by. The Court hopes that children will have as much access to their parents as is practical. They hope that both parents will be actively engaged in the children’s lives. During a child custody case, you’ve got to show the Court that you are willing and able to do what’s best for your children.
If you have a custody case, please contact or speak to a qualified family law attorney. Don’t listen to the opinions of everyone around you. I’m sure they mean well, but it’s not as clear cut as they may think.
Custody designations have evolved just as we have.
• This isn’t meant as a treatise on the law, but rather the general law on custody in the State of Alabama.