Herlihy Family Law
Alison Herlihy is a dedicated family law attorney with roots in Mobile, Alabama.
Herlihy Family Law
EP #3: Exploring Child Custody Laws in Alabama
Discover the nuances of child custody laws in Alabama with host Alison Herlihy, attorney at Herlihy Family Law, as she unravels the complex differences between legal and physical custody. What happens when parents disagree on joint custody arrangements? Tune in to hear about unique strategies like appointing a decision-making "tiebreaker" and why sole legal custody is so rare. Together, Alison demystifies the legal landscape, providing insights into how cooperation between parents and court interventions shape custody outcomes.
Welcome to the Herlihy Family Law Podcast, your trusted source for expert insights on navigating family law matters with clarity and care. Whether you're tackling tough decisions or seeking guidance for your family's future, we're here to help. Let's get started.
Speaker 2:Well, welcome back listeners and viewers Once again. I am Charlie McDermott, the producer of the show and co-host, but I'm not the important person. We have Allison Harlihy with us once again. Thank goodness, Allison, how are you today?
Speaker 3:I'm good, good afternoon.
Speaker 2:Yes, yes, good afternoon, and I see bright sunshine coming through. Is it warming up?
Speaker 3:It kind of feels like summer today here in South Alabama. I know you're probably experiencing similar weather where you are.
Speaker 2:It's summer here almost 12 months out of the year. We did have a little cold snap. It got down into the 60s, but you know we survived, and so did the iguanas. So that's a Florida joke, by the way. When it gets cold here, apparently, they fall from the trees or the palm trees, so you have to be careful those days, for a helmet, I guess. But anyway, today's topic, allison. Before I go down the rabbit hole here, really important one. Obviously you and your team deal with this on a regular basis, navigating child custody and what parents need to know. So let's start with Allison child custody. You know the difference between, I guess, the different arrangements that you run into. Can you kind of start with the basics there and fill us in?
Speaker 3:Sure. So I mean first step. I think it's probably important to understand. Here in Alabama you've got legal custody and physical custody. Legal custody refers to who's able to make major decisions about the children, who has the right to enroll them in school, take them to doctor's appointments, that kind of thing.
Speaker 3:And then physical custody has to do with where the children live. Okay, okay, and how do joint custody agreements differ, then, from sole custody? So that's really kind of like four quadrants that we have to look at here in the way our law is set up in Alabama. So what joint legal custody would mean is that both parents are entitled to make decisions for the children. Both parents can participate in educational, medical decisions, things of that nature.
Speaker 3:Sole legal custody would mean that just one parent has that right, and sole legal custody would be an extremely unusual arrangement nowadays. I mean, you really only see that in a situation where the other parent is like very dangerous, you know. Then when you dive into physical custody, sole physical custody means that is the parent the child lives with the majority of the time. It does not mean that they don't see the other parent at all or anything that extreme, even though it sounds kind of extreme the way it's worded. And then joint physical custody means that the child spends a substantial amount of time with each parent. It doesn't necessarily have to be exactly equal, but it's going to be. It either will be equal or a lot closer to equal than like your more typical every other weekend kind of arrangement.
Speaker 3:Okay, okay, so then for a joint legal and joint physical situation. As you might imagine, the parents have to really figure out how to work together well, because you're communicating on a day in, day out basis on your agreed on all the decisions.
Speaker 2:My question what happens when there is a disagreement, when the parents just can't come up with an answer, whether it's you know what school to send the child to or what have you?
Speaker 3:So if you have a scenario where one parent has sole physical custody and the other parent has visitation, the parent with sole physical custody pretty much ends up being a de facto decision maker. If they don't agree, they're still supposed to consult and consider the opinion of the other parent. But you know, ultimately I mean if you're asking, like a school or a doctor's office or somebody like that, who they're going to listen to, they're going to listen to the person that has sole physical custody. If you have a true joint custody arrangement, that is, joint legal and joint physical, the parents have to agree on everything, and if they can't agree on something and it's a major enough decision, then one parent can always go back to court and ask the court to intervene.
Speaker 3:Wow, and that being said, there are some parents that have joint legal and joint physical custody arrangements, especially people that do it by agreement, where they might agree to designate one parent or the other as the final decision maker or sometimes we call it the tiebreaker over certain major decisions, Like you could say. You know, like if you have a situation where mom's a doctor and dad's a teacher, you might say, well, mom's going to have final decision-making authority about medical and dental decisions, We'll give have final decision-making authority about medical and dental decisions. We'll give dad final decision-making authority about educational and extracurricular decisions. You know, that just seems logical given where their areas of expertise are, but not everybody has that.
Speaker 3:So, some people just have an order that says it's joint, which means you have to really, really work hard to make joint decisions unless you want to end up back in court.
Speaker 2:Yeah, do you see that often?
Speaker 3:What I will say is it depends on whether the parties are able to agree on the terms of their divorce or whether they have to go to court and have the judge decide. If you go through litigation and the judge is the one making the decision about the custody arrangement, joint custody is a lot less likely. Custody is a lot less likely. Most of the judges in our area tend to think that if you don't both want to do joint custody, it's probably not going to work, so they're typically not going to order it if both the parents don't want it. Now, that being said, I can't say that never happens, but it is very unusual In terms of divorces where clients approach us and they want to resolve it out of court, either by doing an uncontested divorce or going through the mediation process. We have lots of clients who agree to do joint legal and joint physical custody with, I would say, a large degree of success.
Speaker 2:Good, good, yeah, got to be what's best for the child boy.
Speaker 3:Exactly.
Speaker 2:Yeah, yeah. So, speaking of which, you know what factors do courts consider when determining the best interest of the child in custody cases?
Speaker 3:Yeah, that's a great question. So in what we would call an initial custody determination which that means that's the first time you've gone to court to decide custody you don't have a prior order. The state of Alabama has a court case called Ex Parte Divine that actually sets out 12 specific factors that the court is supposed to consider in deciding custody, and those include the sex and age of each child. The emotional, social, moral, material and educational needs of each child. The respective home environments offered by each party. The characteristics of each party seeking custody, including age, character, stability and 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.
Speaker 3:The interpersonal relationship between each child and each parent. The interpersonal relationship between the children, like if they're siblings. Interpersonal relationship between the children, like if they're siblings. The effect on the child of disrupting or continuing an existing custodial status, like if the parties are already living separately. The preference of each child, if the child is of sufficient age and maturity. The report and recommendation of any expert witnesses or other independent investigators, such as like a psychologist or maybe a guardian ad litem for the children, and there's a catch-all of just any other factor that the court wants to consider. So when you're going to court to litigate custody, really everything is on the table in terms of what is relevant to the court's decision.
Speaker 2:Okay, okay, that was impressive that list you just rattled off. Everything is on the table in terms of what is relevant to the court's decision. Okay, okay, that was impressive, that list you just rattled off. Jeez, well, you know I've been doing this for 20 years.
Speaker 3:Wow, I do think it's important to note, charlie, the factor about the wishes of the child is something it's one of the most common questions that we get that a lot of clients think that there's some magic age where children get to decide where they live. Some people think it's 14. Some people think it's 12. And that is not the law in Alabama. As you can see from that long list of factors, the child's wishes are just a factor for the court to consider amongst all the factors, and it's not a set age. It's based on the maturity and the intelligence level of the particular child, which you know. I mean, if you talk to three different 14 year olds, they're all going to be totally different, like there's some seven-year-olds that are more mature than some 14-year-olds.
Speaker 3:So it depends on that specific child and again, like I said, that's still just one factor that the court looks at, that what the child wants is never going to be dispositive by itself of what the custody arrangement is.
Speaker 2:Okay, sounds like a lot of work.
Speaker 3:Yeah, it can get really complicated, yeah.
Speaker 2:Because you have these evaluations going on right, I guess in the background and wow in every case.
Speaker 3:but if either or both parents have specific, or the child, you know, if there's specific or complicated mental health issues going on, that would be an example of a situation where a judge might order an evaluation of the family. But that doesn't happen in every case.
Speaker 2:Okay, okay, all right. How about parental fitness? How is? How does that you know, I guess? How does the court assess parental fitness during these evaluations?
Speaker 3:So if you have a situation and fitness is kind of a well, let me say this the other way Unfit, it would be a pretty high bar to show that a parent is unfit, because all parents have a constitutional right to be involved in the upbringing of their children and so they would have to be really, really, really bad for a court to conclude they're totally unfit.
Speaker 3:Like unfit means they really shouldn't be in the picture, or if they are in the picture, their contact needs to be extremely limited. So where you would see the fitness standard come into play more is in an action in juvenile court wherein a non-parent like a grandparent maybe is trying to get custody of a child. That would be what we call a dependency petition, and the burden of proof there is that the person who's asking for custody has to prove that both of the child's biological parents are totally unfit to have them, and reasons for that could be like they've abandoned the child, like left the child with other people, they're so addicted to drugs or alcohol that they can't care for the child, they're in prison. You know things of that nature.
Speaker 2:So we don't again.
Speaker 3:We don't see that in divorce court as much, but it does happen.
Speaker 2:Yeah. How about changing circumstances? Under what circumstances can a custody agreement be modified?
Speaker 3:The name of the case is ex parte McClendon and that is where our higher court set out the standard to modify custody after custody has already been established. So say you're divorced and there's an order that says parent A has custody, parent B has visitation and something happens and parent B wants to go back to court and change custody. So they have to meet the standards set out in that McClendon case and what that says is they have to prove that since the last order there's been a substantial and material change in circumstances such that the benefit of the proposed change in custody more than outweighs the inherently disruptive effect of changing custody. So the court presumes right out of the gate that change in custody is probably a bad idea because it upends the child's whole life.
Speaker 3:so much you know you don't want kids in a situation where this year you live with mom. Next year you live with dad back and forth, back and forth. They call it a rule of repose is what the cases say. So it's like give these kids a break, you know yeah that's good. So that's what the legal standard is, and it is a pretty high bar that you have to meet. It's not as high as like if a non-parent was trying to get custody, but it's higher than the best interest standard.
Speaker 2:Okay.
Speaker 3:Because you have to prove something really major has changed. So if the parent that's already been awarded custody is doing a decent job and taking good care of the child, their custody is not going to change.
Speaker 2:Yeah, so in that process you know what is, I guess, what is that process for requesting a modification to an existing custody agreement?
Speaker 3:So that would be that's kind of considered a whole new case.
Speaker 3:So you would you'd start off with us, you'd come to a consultation at our office and you would tell us about you know what's been going on since the last order, why you think custody needs to be changed, and we would help you assess if there has been enough of a change in circumstances to see if you've got a good case or not, and then from there we'd help you file a motion to modify custody and we get to do what's called discovery, so we get to ask the other parent questions and ask them to provide documents or photographs or recordings that we think are relevant to the issues. We can also subpoena records such as, like the child's school records or maybe the other parents, mental health treatment records or employment records, just depending on what the issues are. Okay, okay, and then eventually that case is going to get set for trial. Okay, okay, make an attempt to settle if that's possible.
Speaker 3:If it's not possible, obviously we're going to trial and then we put whatever evidence we've been able to gather, which includes the items we gather in discovery, but also your own client's testimony is evidence. A lot of people forget that and if they're credible, you know it's going to carry a lot more weight with the judge if your client's a credible witness. So the judge has to hear all that information from both sides and then they make a decision ultimately whether the facts and the information meet that rigorous legal standard.
Speaker 2:Okay, thank goodness you're around.
Speaker 3:It's a lot.
Speaker 2:Any final thoughts to give parents navigating custody with their children? Any final advice or tips that you would provide?
Speaker 3:You know, probably the number one thing I wish all parents would remember is that you know your child is half you and half the other parent.
Speaker 3:Your child is half you and half the other parent. So, no matter how awful the other parent is or what they've done wrong to you, it's really important not to put your child in the middle of those bad feelings and disputes, because that other person is still their parent also and it's important for them to have a relationship with both of their parents. And if the other parent is a negative or unsafe person, then obviously you're going to want to put appropriate limits on that relationship. But they're not going to go away and it's, and the part of them that is in your child is not going to go away either. So it's really important to avoid bad mouthing them or making the child feel responsible for picking one side over the other and things like that. It sounds like common sense, but in these types of cases that we have, you know, emotion runs very high and sometimes people don't make decisions that seem to be common sense. So it just all boils down to just you know you want to put the child first and not put them in the middle.
Speaker 2:Yeah, yeah, yeah. I would imagine in most cases easier said than done, yeah, oof.
Speaker 3:Yeah Well.
Speaker 2:I mean kids need to be kids, no matter what's going on with their parents.
Speaker 3:You know, I mean, kids need to be kids, no matter what's going on with their parents, you know.
Speaker 2:Yeah Well, I'm sure this has been real helpful, but of course you have those out there who need even more help, and so that's where you come into play, allison For those that need that extra assistance. How can they get a hold of you there?
Speaker 3:We have a lot of great information on our website. It's wwwhurleyfamilylawcom. It's full of blogs and videos and things. We've tried to make our content very substantive, to answer the questions that we know people have, and you can request a consultation with us right through the website and and our phone number is there too. We're also on Facebook and Instagram.
Speaker 2:Terrific Well Allison. Once again, wealth of knowledge. I know this is really helpful for folks in your neck of the woods and beyond, and we will see you in the next episode.
Speaker 1:Thank you. Thank you for tuning in to the Herlihy Family Law Podcast. Remember you don't have to face family law challenges alone. Visit HerlihyFamilyLawcom or call 251-277-5356 to learn more.