Child Custody, Visitation | John M. Wood Family Law Center | Birmingham Alabama Divorce Attorneys

Child Custody & Visitation

"For a couple with young children, divorce seldom comes as a solution to stress, only as a way to end one form of pain and accept another." -Fred (Mister) Rogers

Fighting For Custody of Children

We have a policy at this office that exonerates children from any fault in the divorce. Regardless of what brought the parents into this arena, the children are innocent bystanders. We will not participate in a case if our client insists on badgering the children.

When minor children are involved, the custody of those children is of paramount importance in the divorce. Every parent always wants to know the answer to the question, “Will I get my children in the divorce?” Sometimes the issue is moot, because one of the parents has already conceded custody of the minor children to the other spouse.

The Fight of Your Life

When custody is contested, prepare for total war. Nothing is more contentious than a full-blown custody battle. Until recently, women routinely received custody of the children, especially infant children. But there has been a paradigm shift in the courtrooms in many Alabama jurisdictions, and men are walking into custody trials on a more level playing field. Because of these changing times, men are winning custody of the kids in increasing number.

Many mothers believe that because they are moms, they cannot lose. Usually we tell clients that because they are female, they begin with a 10-point lead in the custody game, but unfavorable conduct can quickly diminish that lead. Our judges want to see children placed in the best possible environment. In our experience, we have seen good moms and good dads, bad moms and bad dads. Each custody case is unique due to the facts, circumstances and fault surrounding the breakup of the marriage, as well as each parent’s individual relationship and role with the children during and after the marriage. Make certain we are aware of all potential issues that could be raised concerning your conduct, so that we can reduce the chance that custody is at risk in your case.

Retaliating by Seeking Custody

Some fathers fight for custody simply to retaliate against the mother or to force her to give in on financial issues rather than risk a trial over custody. Some women threaten fathers with limited visitation to gain an economic advantage. Most spouses can determine if the other spouse is serious about receiving custody. If so, custody should take priority throughout the divorce process.

The non-custodial parent’s role with the children after the divorce usually mirrors what that parent’s role was beforehand. If the marriage was a traditional one, where the father spent less time with the children than his wife prior to the divorce, it is doubtful that he will instantly become heavily involved in his children’s lives. But if this was a two-wage-earner family, as most are these days, both mother and father probably continue. Despite what caused the breakup, the children deserve to have the best possible relationship with both parents following the divorce. In addition, the non-custodial parent is more likely to pay child support and assist with other expenses related to the child if he or she sees the children regularly.

Sole v. Joint Custody

“The impact of the divorce on the children continues to affect me,” says an Alabama Circuit Court Judge. “The children deserve to continue to have two parents.”

The court awards two types of custody: either sole custody to one parent or joint custody to both. Most divorcing couples misunderstand these custody terms and what each spouse’s rights are under the custody arrangement. Initially, you might think joint custody is a great idea. You may change your mind once the arrangement is explained to you. The following summarizes the difference between joint and sole custody and the rights of the parents under each.

Under a sole custody arrangement, one parent has the legal right to the care, custody and control of the minor children. The other parent is awarded specific visitation rights with the children. This means the children live with the parent who is awarded sole custody. That parent has the right and responsibility for making all major decisions relating to the children, including medical, educational, academic and social matters.

Standard Visitation

Some parents forget that their children are not pieces of furniture that can be moved in and out of a house without concern. The court strives to stabilize the children, sometimes at the expense of the parents’ comfort, setting up a standard visitation schedule. Many custodial parents have problems allowing the other parent to have even minimum visitation with the children.

The court wants to foster the relationship of the children with the non-custodial parent. Unless you can prove that seeing this parent will harm the children, usually the judge will not restrict or limit the non-custodial parent’s visitation beyond the standard visitation schedule. Generally, the court provides three separate visitation schedules, depending on the age of the children. The courts have determined that visitation should vary for children under 12 months of age, from one year to three years and over three years of age. The following is a typical standard visitation schedule followed by most courts:

Standard Visitation Schedule

a. Schedule. The wife shall be the primary custodian and shall maintain the primary residence for the children, and the husband shall be the secondary custodian and shall maintain the secondary residence for the children. The secondary custodian’s custodial periods shall be as follows:

The first and third weekends of each month from 6 p.m. on Friday until 6 p.m. the following Sunday. The first weekend shall begin on the first Friday of each month at 6 p.m.;
Each Christmas Day from 3 p.m. until 3 p.m. on the following New Year’s Day;
Thirty-one days during the summer (to be taken between June 10 and August 15) to be selected by the non-custodial parent, but upon written notice to the custodial parent at least 30 days in advance of such visitation.
During the odd years, spring break vacation from 9 a.m. Saturday until the following Friday at 6 p.m.;
During the even years, Thanksgiving vacation from Wednesday at 6 p.m. until Sunday 6 p.m.;
Every other birthday of the child from 6 p.m. on said date until 8 a.m. the following morning;
Every Father/Mother’s Day from 9 a.m. until 6 p.m. of the same day;
On the birthday of the mother/father from 3 p.m. on said date until 8 p.m. of the same day;
Any other reasonable times and places upon which the parties can agree; and
Each party shall keep the other informed on a current basis as to the primary residence, address and telephone number where the children reside or visit.

b. Activities of the minor children. Both the husband and wife desire to be involved in the various activities of their minor children. These include academic religious, civic (such as Scouts or other civic-related organizations or community projects), cultural (such as music, theater, and the like), athletic, purchase of clothing, and medical and dental activities of the children. The husband and wife agree to cooperate with the other in adjusting their schedules to assure that the children are delivered to and returned from any such activity. It is further agreed and understood that both parties will notify one another of all conferences, programs, or events relating to such activities in such a way that both parties will have an opportunity to participate in such activities of the children.

Should the husband and wife be unable to agree on any aspect of the academic, religious, civic, cultural, athletic, or medical and dental activities of the children, the following party is hereby designated as having the primary authority and responsibility regarding involvement in said activity:

Academic Wife (Can select Husband or Wife)
Religious Wife (Can select Husband or Wife)
Civic Husband (Can select Husband or Wife)
Cultural Husband (Can select Husband or Wife)
Athletic Husband (Can select Husband or Wife)
Medical/Dental Wife (Can select Husband or Wife)

The exercise of this primary authority is in no way intended to negate the responsibility of the parties to notify and communicate with each other.

Out-of-State Visitation

If the non-custodial parent lives out of state, the parties may select, or the non-custodial parent may be awarded, out-of-state visitation, a different schedule enacted due to the difficulty following the above standard visitation schedules. The out-of-state schedule is primarily tailored to long distance situations where airline travel is required.

Relocation of a Parent

In 2003, the Alabama Parent-Child Relationship Protection Act went into effect. This new law requires a relocating parent with custody to notify the non-relocating parent 45 days before moving the child more than 60 miles or to another state. The notice to the non-relocating parent must include the following:

Address and phone number of the new residence and of the new school the child will attend
The date of the move
The specific reason for the move
A proposed plan for altering custody and visitation
A warning that the non-relocating parent must object to the move within 30 days or the move will be allowed.

The non-relocating parent must file the objection with the court and request a hearing. The objection can come in the form of a request to modify custody or visitation schedules. Pending the hearing, the judge may delay the move. Both sides may present evidence at the hearing that the move either will or won’t benefit the child. The law sets up what is called a rebuttable presumption that the move is not in the best interest of the child, but evidence to the contrary can overcome that presumption. The judge has the power to change custody or visitation, and that fact strikes fear in the hearts of custodial parents all across Alabama.

If the non-relocating party does not take action seeking a temporary or permanent order to prevent the move within the 30-day time frame, the change of residence is automatically authorized.

The Relocation Act is included in every custody agreement or modification, but it can also be interpreted to affect existing custody orders. If you are considering a move, it is important that you take note of this new law. Some moves that require notification are surprising to parents. Consider the following example. A mother (custodial parent) of two children lives in Birmingham, while the father (non-custodial parent) lives in Mobile. The mother decides to relocate to Pensacola, Florida. Even though the father’s commute to visit his children is greatly reduced by the move, the mother still has to give notice because the move is out of state.

What is Joint Custody?

Joint custody once was considered a panacea for all the ills brought on by divorce. In theory, joint custody allows both parents to retain some control over their children’s lives. In addition, it alleviates the stigma many parents feel when they give up custody of their children or have it taken away by the courts. Alabama recently passed a statute authorizing the courts to award joint custody to both parents if it is in the best interest of the children. But don’t confuse the legal designation of joint custody with actual, physical joint custody.

In numerous ways, joint custody in this state is similar to sole custody. In many cases, it creates problems surrounding the care and control of the children. As a result, most judges and divorce attorneys do not like joint custody and only recommend it in limited circumstances where the parents are likely to agree on post divorce issues.

Under a joint custody arrangement in this state, one parent usually is designated the primary custodian and the other parent is the secondary custodian. The children live with the primary custodian except for the time they visit the other parent under a specified schedule. Traditionally, most joint custody arrangements specify that parents make joint decisions concerning the children.

But many agreements also say that when parents cannot agree on academic, medical, religious and other issues, one party must exercise the power to resolve disputed issues. The parent with the final authority on a particular issue may override the other parent’s request every time. This veto power can create tremendous conflict in post-divorce situations. The secondary custodial parent has the right to a voice in academic decisions, but the primary custodian has the final say on disputed issues. If a dispute arises concerning whether the children shall attend public or private schools, the parent with the authority over the academic decisions will have the right to make the final decision every time.

One of the primary reasons many family law experts do not favor joint custody is that it tends to push parents together in a false sense of cooperation. This degree of collaboration may be possible between two married parents, but generally couples getting a divorce have little or no ability to agree on even the simplest issues. Furthermore, the label of joint custody often creates a misconception between parents who do not understand their actual legal rights under the custody arrangement. Many parents believe joint custody means that both parents retain an equal vote on all decisions concerning the children. This is far from the truth and can lead to a shocking realization after the divorce. Joint custody only works under the following conditions; when parents have a good relationship with their children, are willing to make sacrifices to enrich their children’s lives and are able to communicate with each other.

Sample Joint Custody Language and Visitation Provisions

The following language contains the typical terms contained in a joint custody agreement. Pay particular attention to this language, and if you apply this to any real life scenario, you will see the host of potential problems that could arise.

It is agreed by the parties that it is in the best interest of the children, Kate Doe and Jack Doe, for their care, custody and control, to be shared by both parties. The husband and wife understand that shared custody means both parties shall retain full parental rights and responsibilities with respect to their children, regardless of which party has physical custody at any particular time. The husband and wife agree that shared custody means shared parental responsibility and requires both parents to confer so that major decisions affecting the health and welfare of the children will be jointly determined. (Either party can be designated as the primary custodian, but this example assumes the wife is the primary custodian.)

c. Schedule. The wife shall be the primary custodian and shall maintain the primary residence for the children, and the husband shall be the secondary custodian and shall maintain the secondary residence for the children. The secondary custodian’s custodial periods shall be as follows:

The first and third weekends of each month from 6 p.m. on Friday until 6 p.m. the following Sunday. The first weekend shall begin on the first Friday of each month at 6 p.m.;
Each Christmas Day from 3 p.m. until 3 p.m. on the following New Year’s Day;
Thirty-one days during the summer (to be taken between June 10 and August 15) to be selected by the non-custodial parent, but upon written notice to the custodial parent at least 30 days in advance of such visitation.
During the odd years, spring break vacation from 9 a.m. Saturday until the following Friday at 6 p.m.;
During the even years, Thanksgiving vacation from Wednesday at 6 p.m. until Sunday 6 p.m.;
Every other birthday of the child from 6 p.m. on said date until 8 a.m. the following morning;
Every Father/Mother’s Day from 9 a.m. until 6 p.m. of the same day;
On the birthday of the mother/father from 3 p.m. on said date until 8 p.m. of the same day;
Any other reasonable times and places upon which the parties can agree; and
Each party shall keep the other informed on a current basis as to the primary residence, address and telephone number where the children reside or visit.

d. Activities of the minor children. Both the husband and wife desire to be involved in the various activities of their minor children. These include academic religious, civic (such as Scouts or other civic-related organizations or community projects), cultural (such as music, theater, and the like), athletic, purchase of clothing, and medical and dental activities of the children. The husband and wife agree to cooperate with the other in adjusting their schedules to assure that the children are delivered to and returned from any such activity. It is further agreed and understood that both parties will notify one another of all conferences, programs, or events relating to such activities in such a way that both parties will have an opportunity to participate in such activities of the children.

Academic Wife (Can select Husband or Wife)
Religious Wife (Can select Husband or Wife)
Civic Husband (Can select Husband or Wife)
Cultural Husband (Can select Husband or Wife)
Athletic Husband (Can select Husband or Wife)
Medical/Dental Wife (Can select Husband or Wife)

The exercise of this primary authority is in no way intended to negate the responsibility of the parties to notify and communicate with each other.

How to Determine the Primary Custodian

In a custody dispute, it is important to illustrate to the court that one parent has been the primary custodian of the children throughout the marriage. This parent usually is the one who receives primary custody of the children after the divorce, unless there are significant conflicting circumstances. To determine who is the primary custodian, you need to determine who performs most of the following activities for the children:

Who helps the children get dressed for school?
Who fixes breakfast for the children?
Who packs the children’s lunch for school?
Who helps the children with their homework?
Who participates in school activities with the children?
Who takes care of the children after school?
Who bathes the children?
Who takes the children to school?
Who takes the children to the doctor?
Who takes the children shopping?
Who takes the children to religious activities?
Who arranges the children’s extracurricular activities?
Who helps children in various stages of development?

What a Parent Should Know Before Custody Battle

Before entering a custody battle, make certain you know answers to basic questions concerning the care of your child. Any parent who has participated in the majority of the activities necessary to meeting the basic needs of a child should be able to answer the following questions:

Who is the child’s doctor?
Where is his/her office?
What allergies does the child have?
Who is the child’s dentist?
Who is the child’s principal?
Who is the child’s teacher?
What is the child’s favorite subject in school?
Who is the child’s day care provider?
How often does the child go to day care?
Name the child’s three best friends.
What is the child’s favorite book?
What is the child’s favorite color?
What special needs does the child have?
What size shoe does the child wear?
What size clothes does the child wear?

Sometimes a parent who means well, but hasn’t taken an active role in the care of the children, needs time to establish a role with the child and learn critical information before asking for custody. One client who came into our office was convinced his wife was mentally unstable and could no longer care for their son. Although he worked long hours and traveled for his company, he was determined to make a change in his life. For months, he strengthened his position with the child and kept a journal of his wife’s erratic behavior.

After a particularly disturbing weekend at home, the father alerted us to file the divorce, and he moved the child elsewhere for protection. Because he was well prepared and could demonstrate how his wife’s mental state was affecting his son, the man won sole custody of the child and the wife received limited visitation.

Potential Custody/Visitation Problems

“I have always told my son the truth. I think it is important to let him know that his mother is a fat alcoholic.” This was the straight-faced declaration of the father of a five-year-old. Doesn’t this sound as though the father’s pain will cause visitation problems in the future? We are firm believers that the children do not need to know every issue in a divorce.

If young children are involved in the divorce, we can practically guarantee there will be visitation problems in the future. No settlement agreement can address every potential circumstance that arises in the raising of children. Disputes may involve the simplest of issues. You may be a parent who cannot pick up the child at a scheduled time, due to unforeseen circumstances. Or your child may have an important event during a visitation period and the other parent refuses to take the child to the event. There are divorces without these problems, but they seem to be the exception.

Clients often call our office in a panic because an ex-spouse is 10 minutes late returning the child from visitation. One domestic judge asked the attorneys involved in a visitation dispute like this if their clients had lost their minds. In some instances, clients do feel they are losing their minds because of all the emotions involved. Why would anyone get the court involved because their ex brought the child home 10 minutes late? Plenty of married couples run late. Yet, when a court order spells out a visitation schedule, parents believe they can make absolutely no exceptions to the rule. Ten minutes may seem like a major infraction to that parent. But in the scheme of things, life goes on.

In some instances, non-custodial parents have not been allowed to take children to events such as baseball or football games, because the games were not during a visitation period. It is no wonder the two parents ended up divorced, when they are not able to squelch their harsh feelings for each other long enough to allow a child to attend a baseball game. Even worse, one parent will tell the child, “Yes, I would like to let you go to the game, but I can’t trust your father to bring you home on time.” Now, the child has not only been denied an opportunity to be with the other parent, but he has been placed in the middle of a petty visitation dispute.

Children Deserve Both Parents

“Children spell love ‘T-I-M-E’.” This is a wonderful quote from John Croyle, founder of the Big Oak Ranch Children’s Home.

Children in a divorce deserve an equivalent amount of guidance from both parents. They don’t need two parents who use them as pawns against each other. It is amazing the number of parents who say they are honest with their child, so they explain to the child, “your mother was having an affair and she left us for someone else.” A child of five or six years old is not mature enough to understand divorce. Most of the time, a parent is simply trying to turn the child against the other parent by filling the child’s head with negative images.

Dr. Karen Turnbow has counseled separating families through divorces for the past 21 years. She recommends that parents only tell the children what they absolutely need to know about the divorce and save the details for themselves.

“I think parents need to be fairly general when they are talking about the divorce with their children,” says Dr. Turnbow. “Children don’t need to know that dad had an affair or mom charged up the credit cards. Divorcing couples should tell their children that sometimes parents have problems and can no longer live together in a peaceful, happy way.”

In one case a mother talked so badly about the father all week long that when it came time for his weekend visitation, the children didn’t want to go. When confronted, the mother said she could not understand why the children would not go. Eventually, it was shown that the mother had talked so poorly about the father that the children believed he was a terrible monster. Besides speaking negatively about their father, the mother gave the children a tape recorder to record their father at the front door when he came to pick them up. She wanted to prove that he always lied to them. But this man was no monster.

On the contrary, he was a wonderful individual and a good father with only his children’s best interest in mind.

When he sued for custody, the children testified that they loved their father very much, but they did not want to hurt their mother’s feelings by going with him. So they just didn’t go on the visitation. The mother was found in contempt of court for willfully interfering with a divorce decree and was sentenced to jail. That mother should have lost custody for the example she set. She not only taught the children to lie, but she also created a barrier that nearly destroyed the father’s relationship with the children. If not for the father’s persistence, he would have had to give up on his children altogether. This example illustrates how children get enlisted to carry on the other parent’s battle by refusing to visit their non-custodial parent.

“When this happens and a child refuses to visit another parent, that’s when you need to seek the help of a professional,” says Dr. Turnbow.

When this type of situation arises, we do everything we can to ensure that people do not use their children as pawns during and after a divorce. There are always differences of opinion over who is the better parent, but those disputes should remain between the parents. As a rule, we only put a child on the witness stand when it is determined that, due to the overwhelming need for the testimony, we have no other choice.

Lawyers who put a child on the stand merely to ask a five-year-old which parents he or she wants to live with are making a strategic error most judges detest and often won’t forgive. Many times, we question whether the parties and their lawyers know the destructive power they hold and the damage they can do to a child by involving them in the divorce decision making.

“No matter how old children are, they cannot decide where they will live,” says Dr. Turnbow. “A lot of children do not want to make that decision. Saying that you want to live with one parent may make them feel like they are being disloyal to the other parent.”

Remember that for most of your children’s lives, they will remember how you handle the divorce. If you neglect them, they will never forget it. If you use them as pawns, they will never overlook it, nor are they likely to ever forgive you. One day they will grow up, and the games their parents played with their lives will become more apparent.

If you are looking out for your children’s best interest, you will always separate your children from the divorce, even if it means tremendous personal sacrifice on your part. To do other wise would harm not only your children, but your own self worth.

Located in Birmingham, Alabama, we represent clients in Mobile, Huntsville, Montgomery, Tuscaloosa, Hoover, Homewood, Greystone, Mountain Brook, Pelham, Trussville, Central Alabama, Mountain Brook, Pell City and Bessemer.