Types of Custody
Custody may be either “sole” or “joint”. Custody has two aspects to it: physical and legal. While physical custody is an easily understood concept, legal custody is not. You may think of legal custody as a sharing of the decision making as concerns the children’s care and well being. Sole custody awards a parent with both legal and physical custody. Joint custody means that there is some sharing of legal and physical custody. Joint custody does not mean that the time the children will be in the physical custody of each parent is equal. Where both parents seek joint custody, there is a presumption that it is in the best interests of the child.
Court’s determine child custody based on what is in “the best interests of the child”. By statute, Court’s are required “to award custody and education of the children of the marriage to either the father or mother”. The “tender years” doctrine, which established the presumption that minor children under the age of 7 years should be in the custody and care of the mother, was abolished in 1981 in the case of Ex Parte Devine. The court in this case established that the proper standard to determine the award of custody should be based on consideration of 12 elements:
- The sex and age of the children;
- The characteristics and needs of each child, including their emotional, social, moral, material, and educational needs;
- The respective home environments offered by each party;
- The characteristics of those seeking custody, including age, character, stability, mental and physical health;
- The capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the children;
- The interpersonal relationship between each child and each parent;
- The interpersonal relationship between the children;
- The effect on the child of disrupting or continuing a custodial status;
- Preference of the child if the child is of sufficient age and maturity;
- The report and recommendation of any expert witness or other independent investigator;
- The available alternatives;
- Any other relevant matter which may be present.
As can be seen from these factors, it is not required in Alabama to show that the other parent is unfit before custody can be awarded. Past performance relative to many of these factors is key to the Court’s determination and award of custody.
The standard used by the Alabama Courts today to review changes to child custody was outlined in the case of Ex Parte McLendon. In that case, the Court stated that for a change of custody to be awarded,
“The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. The parent seeking the custody change must show not only that she is fit, but also that the change of custody materially promotes the child’s best interest and welfare”.
Material changes that effect the welfare of the children must have occurred after the last decree such that a change of custody meets the standard laid out in McLendon. The fact that a non-custodial parent’s circumstances have improved is not sufficient to meet this standard.