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740 - Who Gets Custody?The first thing you need to understand about all this is that the very word "custody" encourages parents to view the situation as a contest that has to produce a winner and a loser. It doesn't have to work that way. Children need a close, loving relationship with both of their parents, and the finest gift parents can give their children in a divorce is not to fight over them. Most couples going through divorce don't fight over their children. But it is important for negotiation to know how a judge might rule, so here's how it would work in adversarial court: Child custody is probably the area where there's the most difference between what the law says and what actually happens. What the law says is that the mother and the father stand on an equal footing when it comes to child custody. What actually happens, though, is that mothers get custody in the vast majority of cases. The formal inquiry comes down to 12 factors that were set in a 1981 case called Ex parte Divine. Things like the sex and age of the child, the relationship the child has with each parent, the place where each parent lives, the ability of the parent to provide for what the child needs, any expert witnesses, and basically anything else relevant the judge wants to consider. Again, though, as a practical matter, it's very difficult for the father to get custody over the objection of the mother. He's probably going to have to show some pretty distressing behavior on Mom's part, and it will have to be behavior that impacts the children. Now how about someone who is not a parent at all? The standard here is that the non‑parent has to show that the natural parent is unfit, and that's a tough test. The burden gets much lighter, though, if the natural parent has abused or neglected the child, or if the child has already been living with the non‑parent for awhile. Alabama Family Law Center serves clients who need to get through divorce and who are able to be reasonably cooperative. The goal is for both spouses to survive divorce and move on with their lives with some money in their pockets and their dignity intact. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. If you'd like to make an appointment with me, call 205-979-6960. Or you can click here to return to the Divorce Line. |
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