"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
Child custody cases are some of the most difficult cases handled by our firm. There are so many facets to these cases that it is often difficult to determine who will eventually come out on top with custody until the final hearing. However, there are other cases where the choice is obvious. In certain cases though, the most appropriate arrangement is for the parties to truly share custody of the children.
When you are doing your research on child custody and visitation before talking to an attorney, you will find several words related to custody such as physical possession, primary custody, joint custody, conservatorship, time-sharing, and many others. It is important to know that in Alabama there are only five actual words used in our Code to describe custody of children. They are as follows:
(1) JOINT CUSTODY, which is defined as pure joint custody, both legal and physical as defined below.
(2) JOINT LEGAL CUSTODY, which is defined as both parents having 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. Regardless of the requirement that both parties have equal rights and responsibilities for these decisions, the court may designate one parent as having the sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
(3) JOINT PHYSICAL CUSTODY, which is defined as the shared physical custody of the parties children in such a way that assures the children have frequent and substantial contact with both parent. This does not mean that both parents have to have completely equal durations of time with the minor children.
(4) SOLE LEGAL CUSTODY, which is defined as one parent having the sole right and responsibility 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, which is defined as one parent having the sole physical custody of the parties children, and the other parent having rights of visitation except as otherwise provided by the court.
Sole v. Joint Custody
Regardless of the custody situation you choose or the custody situation that is forced upon you by the Court, your children will still have two parents, and in most situations, those two parents will continue to have ongoing contact with the children. In certain, extreme situations, one parent may have very limited or supervised contact with the children. It is important that both parties put their personal feelings aside and do what is best for their children. Children need two parents…a mom and a dad. Remember, your children did not choose this situation, they are just the ones most affected by it.
With all the custody options above, you can end up with a variety of custodial situations such as:
- Pure joint custody: both legal and physical
- Joint legal custody, with one parent having the sole physical custody (most common)
- Sole legal and sole physical custody (most extreme option)
- Sole legal custody and joint physical custody (rarely utilized)
Under a sole legal and physical 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 all the rights and responsibilities for making all major decisions relating to the children, including medical, educational, academic and social matters. This essentially means that the “visiting” parent has little right to anything except the right to receive records and have visitation. It relegates the “visiting” parent to a visitor in the children’s lives. Sometimes, this is exactly what the parties want, and sometimes, it is forced upon them by the Court because their case made it to trial and if the parties cannot settle their disputes ahead of trial the Court decides that they will never be able to work together in a joint custody situation.
Under a joint legal custody situation, the parties at least have to confer with one another regarding major decisions like those described above. It forces the parties to communicate with one another and keep each other informed of the children’s activities, health, academic performance, extracurricular activities, religious upbringing, and other facets of the children’s lives. Ultimately, if the parents are unable to agree on a particular area, one parent is designated as having the final decision making authority on each area or that right is given to the parent having sole physical custody if that is the physical custody situation chosen by the parents or ordered by the Court. If the areas of decision-making authority are to be divided between the parties, these are the areas usually considered:
- Civic (i.e. Boy Scouts, Girl Scouts, and like organizations)
- Cultural (i.e. music, ballet, art and other cultural activities)
Fighting For Custody of Children
Contested Child Custody cases are some of the most difficult cases handled by the firm. It is difficult for the parents, but it is more difficult for the children. They worry about being loyal to one parent or the other. They feel like their lives are being torn apart, and it is all their fault. Our policy is that children are the innocent bystanders in our cases. We will not participate in a case if the potential client insists upon badgering the children or treating them like pawns. Part of the work we are dedicated to is the protection of children. All children deserve to grow up happy, healthy, loved, and with the ability to love all the important people in their lives.
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 the main issue and it is contested, you have to be prepared for a true battle. Nothing is more difficult or 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. This is not true. Especially, if mom has behaved badly during the course of the marriage or even after the divorce has been filed. Also, it is much more common now that Dads are as involved in the care and raising of their children as the Mother’s are. 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. It is vitally important that we are aware of all issues regarding your conduct. If we do not know about it, we cannot defend it.
If you are going to seek the physical custody of your children, you need to be prepared to show the Court that you have provided for the care of the children from getting them ready for school to tucking them in at night. You need to be able to prove that you have been there. A parent, who cannot name the names of his or her children’s friends, doctors, teachers, and babysitters, is not going to get custody. The role you had before the divorce is likely to be the role you have afterward. Proving that you are the better parent can be a long and expensive process, and you need to be prepared.
At our firm, we strive to protect our clients’ children while also providing impeccable legal services to our clients to support them through their battle. We have the skills, abilities, and connections to appropriately prepare you to fight this battle.