For over 25 years, I spent my career in Family Law, where child custody cases were always the most difficult. When I first began my job, the law in North Carolina was to “keep the family together.” This resulted in cases where children were abused in the home, and the courts would return the children back into the home where sadly too many of them ended up dead. This law was changed to “what is in the best interest of the child.” This means that judges consider many factors, including the child’s needs, the parents’ abilities, and the child’s relationship with each parent.
The law in Alabama also is cited as what is in the best interest of the child. According to Alabama Code 30-3-151, there are five different definitions of custody:
(1) JOINT CUSTODY. Joint legal custody and joint physical custody.
(2) JOINT LEGAL CUSTODY. Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
(3) JOINT PHYSICAL CUSTODY. Physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time.
(4) SOLE LEGAL CUSTODY. One parent has sole rights and responsibilities to make major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training.
(5) SOLE PHYSICAL CUSTODY. One parent has sole physical custody, and the other parent has rights of visitation except as otherwise provided by the court.
There are five factors that determine custody in accordance with Alabama Code 30-3-152, as follows:
(1) The agreement or lack of agreement of the parents on joint custody.
(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.
Alabama Code 30-3-153 implements the law by required provisions as follows:
(a) In order to implement joint custody, the court shall require the parents to submit, as part of their agreement, provisions covering matters relevant to the care and custody of the child, including, but not limited to, all of the following:
(1) The care and education of the child.
(2) The medical and dental care of the child.
(3) Holidays and vacations.
(4) Child support.
(5) Other necessary factors that affect the physical or emotional health 6) Designating the parent possessing primary authority and responsibility regarding involvement of the minor child in academic, religious, civic, cultural, athletic, and other activities, and in medical and dental care if the parents are unable to agree on these decisions. The exercise of this primary authority is not intended to negate the responsibility of the parties to notify and communicate with each other as provided in this article.
(b) If the parties are unable to reach an agreement as to the provisions in subsection (a), the court shall set the plan.
Alabama House Bill 53 (HB 53) is a bill that establishes a rebuttable presumption of joint custody in child custody cases. It was introduced in the House on February 4, 2025, and is pending in the House Judiciary Committee.
So how does this change the law in Alabama? It will require the parents to agree on provisions for the care and custody of their child; this will include provisions for education, medical care, holidays, vacations, child support among other things; it will designate which parent has “primary” custody for the child’s involvement in activities like academics, sports, and medical care; and sets a plan if the parents are unable to reach an agreement.
This bill has exceptions for domestic violence. It will also make it harder for the Judge to protect children and promote their welfare by putting the needs of the parents above the children. In a situation where you have a child with special needs, that child would be considered by the court by the same law that would determine the needs of a healthy child. This law would also disregard the past relationship the children have with each parent or the emotional bonds that the child has with his or her parents. This will most likely lead to even more conflict between the parents.
The only exception would be if there has been an allegation of domestic violence in the home. The courts are already jammed with allegations of domestic violence that one parent often uses as a pawn to convince the court that the other parent is dangerous or unfit. This law will only make those allegations rise whether they are true or not.
Each custody case is as different as the child involved. There is no one-size-fits-all solution. There are things to consider, such as the gender and age of the child. If the child is an infant and nursing, then the separation from the Mother would have to be seriously considered. The home environment of each parent is a big factor. The child’s sleeping arrangements are a consideration, as well as whether the house is a proper place free of drugs and alcohol.
The relative level of financial means of the parents is NOT determinative in custody cases in Alabama. The court may award child support in conjunction with the custody award. The financial means or lack thereof does not play a determinative part in custody decisions.
Requiring judges to make these specific findings of fact to reach a custody decision that would overcome the presumption of joint custody would be public record. This is public record and accessible by all citizens, including the child. The positive side is that it would help judges if they needed to modify custody arrangements.
Whether this Bill passes and becomes law remains to be seen. For sure, it will change the outcome that will have an effect on Alabama families.
Lynda Kirkpatrick
Marion County Democratic Party Chair
SDEC Elected Rep HD 17 Alabama Democratic Party
Alabama Democratic Party County Chairs District 4