The term “physical custody” refers to the parent who actually has primary physical responsibility and control of the child. Normally the parent who has physical custody is the parent with whom the child lives most of the time. When one parent has sole physical custody, the other parent usually gets visitation with the child. Also, the parent who has sole physical custody could receive child support from the other parent.

Joint physical custody refers to when physical custody is shared by the parents in such a way that the child has frequent and substantial contact with each parent, although not necessarily equal time with each parent. Parents may have joint physical custody while one parent has sole legal custody.¹

¹ Alabama Code § 30-3-151

Visitation is the right to spend time with your child. Judges will usually grant some form of visitation rights to parents who do not have physical custody of their children except where a judge finds that it would be unsafe or otherwise harmful to the child or the custodial parent.¹ For more information, see Can a parent who committed violence get visitation?

¹ See Alabama Code § 30-3-132

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request, although this may depend on your situation.

However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to AL Finding a Lawyer to seek out legal advice.

There is an assumption that it is in the best interest of the child to be with one or both of his/her natural parents. For a non-parent to get custody, the parents have to either give up their rights, be deceased, or the non-parent seeking custody has to prove that the parent is guilty of such bad misconduct or neglect that the parent is unfit and an improper person to be entrusted with the care and upbringing of the child.¹

¹ Ex parte Jonathan M. Terry; 494 So. 2d 628, Supreme Court of Alabama (1986); see Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)

A judge could grant visitation to a parent who committed violence only if the judge believes that proper measures can be taken to ensure the safety of both you and your child. The judge must also take into account the abuser’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault, to another person.¹

When creating a visitation order, the judge can include protections, such as:

• ordering that your address be kept confidential;
• ordering the child to be picked up and dropped off in a protected place;
• prohibiting overnight visits;
• ordering supervised visits;
• ordering the abuser to pay for supervised visitation;
• ordering the abuser to pay (post) a bond, which usually means the abuser would have to deposit money with the court that could be used to locate the child if the abusive parent doesn’t return the child;
• ordering the abuser to attend a batterer’s treatment program; and
• ordering the abuser to not use alcohol or drugs during the visitation and for 24 hours before the visitation.²

Also, the law states that if a parent is absent or relocates because of an act of domestic or family violence by the other parent, the absence or relocation is not a factor that the judge can use against the parent in making a decision as to custody or visitation.³

Note: The judge can refer, but cannot order, an adult who is a victim of family or domestic violence to attend counseling relating to the victim’s status or behavior as a victim, individually or with the abuser. However, even though the judge cannot “order” the victim to attend, the law says that attending this counseling could be a condition of receiving custody or visitation.²

¹ Alabama Code § 30-3-132(a)
² Alabama Code § 30-3-135
³ Alabama Code § 30-3-132(b)

Aside from being convicted of a sex crime, a parent’s parental rights can be terminated if the judge finds that s/he is unable or unwilling to carry out parental responsibilities for the child, or if the parent’s conduct or condition makes him/her unable to properly care for the child. As in all custody cases, this decision must be made considering the child’s best interests.¹

If the other parent has abandoned the child for four months, there is what’s called a “rebuttable presumption” that s/he is unable or unwilling to act as the child’s parent.² This means that the judge will assume that this is true but the parent being accused of abandoning the child will have the chance to present evidence to change the judge’s mind at a court hearing.²

During a termination hearing, the judge will consider the following factors:

1. whether the parent abandoned the child;
2. any emotional illness, mental illness, mental deficiency, or excessive use of alcohol or drugs that makes the parent unable to care for the child;
3. whether the parent has committed or attempted to commit any of the following, or if the child is in clear and present danger of suffering from any of the following:
   
   1. torture;
   2. abuse;
   3. being cruelly beaten; or
   4. being otherwise maltreated;
4. whether the parent has been convicted of, and imprisoned for, a felony;
5. whether the parent has committed any of the following:
   
   1. the murder or manslaughter of another child;
   2. aiding, abetting, conspiring, or soliciting the murder or manslaughter of another child; or
   3. felony assault or abuse that results in serious bodily injury to another child;
6. whether the child has suffered serious physical injury in circumstances that indicate that the injury resulted from the parent’s intentional actions or willful neglect;
7. whether there have been reasonable efforts by the Department of Human Resources or a child care agency to rehabilitate the parent;
8. whether the parent’s parental rights to the child’s sibling have been involuntarily terminated;
9. whether the parent has failed to provide for the child’s material needs, or to pay a reasonable portion of child support;
10. whether the parent has failed to maintain regular visits with the child under a plan created by the Department of Human Resources or a child care agency;
11. whether the parent has maintained consistent contact or communications with the child;
12. whether the parent has tried to adjust his/her circumstances to meet the needs of the child according to an agreement made with the Department of Human resources or a child care agency; and
13. whether the child has developed significant emotional ties to current foster parents, including:
    
    1. how long the child has lived in a stable and satisfactory environment;
    2. whether cutting the child’s ties with current foster parents goes against the child’s best interests; and
    3. whether the judge has found at least one other reason for terminating the abuser’s parental rights.¹

¹ Alabama Code § 12-15-319(a)
² Alabama Code § 12-15-319(d)

If a parent decides to limit or deny visitation to a grandparent, the judge must assume that the parent is acting in the child’s best interest. In order to convince the judge to go against the parent’s wishes and grant visitation, the grandparent must prove that:

1. s/he has established a significant and sustainable (viable) relationship with the child by proving:
   • the loss of the relationship between the grandparent and the child is likely to harm the child; or
   • within the past three years before filing the petition, any of the following are true:
     • the child lived with the grandparent for at least six consecutive months, with or without a parent present;
     • the grandparent was the caregiver to the child on a regular basis for at least six consecutive months; or
     • the grandparent had frequent or regular contact with the child for at least 12 consecutive months, which resulted in a strong and meaningful relationship with the child;¹ and
2. visitation is in the best interest of the child by proving all of the following:
   • the grandparent has the ability to give the child love, affection, and guidance;
   • the loss of an opportunity to maintain a significant and sustainable (viable) relationship with the grandparent has caused or is reasonably likely to cause harm to the child; and
   • the grandparent is willing to cooperate with the parent(s) if visitation with the child is allowed.²

¹ Alabama Code § 30-3-4.2(c), (d)
² Alabama Code § 30-3-4.2(c), (e)

Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often times, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or your fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.

If you decide to file in court for custody, the process usually looks similar to this:

1. File for custody. You may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:

• If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
• If you are a married parent who is not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
• If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.

2. Prepare for the custody process

The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence on our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.

During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about which parent gets custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.

3. Prepare for trial

There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and to cross-examine the other party to help the judge make a decision.

If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:

• communications between the parents can only be in writing;
• all communications can only be related to the child; and
• a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.

You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child as to avoid future conflicts.

4. Options if you lose the custody case

There could be a couple of options that are filed immediately after the judge makes the custody order:

• A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
• An appeal moves the case to a higher court and asks that court to review the lower court’s decision due a judge’s error.

A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. If you are already divorced, a petition for a change in custody can be filed in the county where the divorce was issued.

To find out more about how the process works in your area, please contact a lawyer. Please visit our AL Finding a Lawyer page to find legal help in your area.​ You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, child support, and moving out of state with your child.

While judges will likely consider the option of joint custody in every case, the judge should not always assume that joint custody should be awarded in every case. The policy of Alabama is to ensure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children.¹ When deciding whether joint custody is in the best interest of the child, a judge will look at:

• whether you and the other parent agree to joint custody;
• whether you and the other parent could cooperate in making decisions about the child’s life;
• the ability of each parent to encourage a good, loving relationship between the child and the other parent;
• whether either parent has committed or may commit child abuse, domestic abuse, or kidnapping;
• where each parent lives and how practical that makes joint custody; and
• any other factors that a judge thinks may affect the best interest of the child.²

¹ Alabama Code § 30-3-150
² Alabama Code § 30-3-152

You can usually only file for custody in Alabama if Alabama is your child’s “home state.” However, there are exceptions to the home state rule.

Alabama usually qualifies as your child’s “home state” if:

• your child lives in Alabama and has lived in Alabama for the last six months in a row;
• your child no longer lives in Alabama but Alabama is the last state where your child lived for at least six months in a row; or
• your child is less than six months old but has lived in Alabama since birth.¹

Leaving Alabama for a short period of time, such as going on vacation, usually does not change the child’s home state.²

¹ See Alabama Code §§ 30-3B-201(a)(1); 30-3B-102(7)
² Alabama Code § 30-3B-102(7)

If you get a protection from abuse (“PFA”) order, the judge can give you temporary custody of your children and can set up visitation for the other parent, either supervised or unsupervised.¹ Be sure to tell the judge that you want custody during your protection order hearing so that the judge can take your request into consideration. However, custody and visitation orders that are granted in a PFA order expire when the order expires. For more information on PFA orders and how to get one, go to our Protection from Abuse Orders page.

¹ Alabama Code § 30-5-7

Generally, the judge will not change a custody order unless there has been a substantial change in circumstances from when the original custody decision was made. In Alabama, if a judge finds that domestic or family violence has occurred since the last custody decision, that could be a substantial change in circumstances.¹

To modify a custody order, you will usually need to go to the court that issued the order to file a request to change a custody or visitation order. If you move to a new county, you may be able to move your case to the new county if the other parent and your children have moved to that new county, too. Even if the non-custodial parent has not moved to a new county, but you (the custodial parent) and your child have lived in another county for more than three years, you have a right to have future custody decisions made by a court in your new home county.²

If you have moved to a new state with your child or if both parents and the child have moved away from the original state, you can ask the court to change the jurisdiction to the new state that you and your child are in. See our Changing a final custody order page for more information. This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. Go to the AL Finding a Lawyer page to find legal help in your area.

¹ Alabama Code § 30-3-134
² Alabama Code § 30-3-5

For temporary trips out of state, you might not have a problem if taking the child out of state does not interfere with the other parent’s custody or visitation rights or if the other parent gives written permission. If it is safe for you to do so, it might be a good idea to let the other parent know your plans and the date you expect to return if you are leaving the state briefly so that the parent does not think that you have left the state to relocate with the child. Technically, under the law, you would not be considered to have “relocated” with the child unless you live somewhere else for more than 45 days; although it may not be considered a relocation if the trip is temporary in nature and doesn’t change the child’s principal residence or if the absence is caused by the need to escape domestic violence.¹ To read more about relocation, go to What do I have to do to relocate my child?

Note: The laws concerning moving and taking a child out of state are very complicated and, as with all custody issues, we recommend that you talk to a lawyer about this first before you leave the state. To find a lawyer or legal aid program in your area, please visit the AL Finding a Lawyer page.

¹ Alabama Code § 30-3-161(11)

If the custodial parent plans to move the child’s primary residence for longer than 45 days, s/he has to send the required notice to the non-relocating parent. The non-relocating parent can then go to court to object to the planned move and can ask the judge to make an order preventing the move. (Non-parents who are entitled to visitation cannot “object” to the move but they can petition the court for a modification in their visitation rights.) Generally, the objection by the non-relocating parent has to be filed within 30 days of when s/he receives notice of the planned move.¹

Unless the non-relocating parent has been found to have committed domestic violence or child abuse, the judge will assume that moving is not in the best interest of the child. So the custodial parent will have to prove to the judge that it is in the child’s best interests to move if the non-relocating parent objects.²

However, the non-relocating parent cannot object to a move if both of the following are true:

1. the child will be staying in the state; and
2. after the move, the child would be:
   • within 60 miles of the non-relocating parent; or
   • closer to the non-relocating parent.³

¹ Alabama Code § 30-3-169.1(a), (b), (c)
² Alabama Code § 30-3-169.4​
³ Alabama Code § 30-3-162(b)