Alabama Divorce & Family Law Attorney Blog : Birmingham Divorce Lawyer & Attorney : Eversole Law Firm : Serving Birmingham, Montgomery, Mobile Alabama

A fight over child custody can be a painful and wrenching experience for any family. As an Alabama family law attorney and divorce lawyer in the Birmingham area, I have seen the emotional torrent that swirls around all parties in hotly contested custody battles. In the case of former vice-presidential hopeful Sarah Palin’s grandson, Tripp, hopefully the child’s young age will at least spare him from most of the drama.

Recently, news agencies have been talking about the latest saga of Bristol Palin and her former boyfriend and fiancée, Levi Johnston. According to reports, Johnston has been on a so-called campaign against Alaska’s former “first family” by revealing a variety of family secrets.

Regarding the recent custody case over young Tripp, public records from an Alaskan court have revealed a heated battle between Palin's daughter and the father of her grandson. Bristol Palin had asked the court to keep the proceedings closed, but that request was denied a Superior Court judge -- a temporary order had authorized the use of pseudonyms while the court was considering the request, which stated that no good "could result to the child by an onslaught of media."

Johnston’s stance was that he didn’t feel protected against Sarah Palin in a closed setting. The father of one-year-old Tripp had been pushing for open court proceedings, saying he just wanted a simple case based on its merit. A qualified family law attorney can be a great asset in cases not unlike this one

According to news articles, Bristol Palin had petitioned the court in early November last year, asking for sole custody as well as child support. The petition also requested a visitation schedule for Johnston, saying that the former fiance had exercised "sporadic visitation rights."

The eldest daughter of Sarah Palin, Bristol Palin's custody petition called Johnston's recent nude photo shoot for Playgirl magazine "risque." She also noted that the man’s mother, Sherry Johnston, should not be allowed unsupervised visits with the baby following her drug arrest. Sherry Johnston, who is reportedly serving a three-year sentence under home confinement, was again sentenced last month on a guilty plea to one count of possession with intent to deliver the painkiller OxyContin.

In a motion opposing closed proceedings, Johnston's attorney argued that Bristol Palin had not shown what sort of evidence could stigmatize the child. The lawyer said that the Palin-Johnston case has similar facts that accompany open child custody cases every day in the Alaskan court system.

Bristol Palin seeks full custody of baby, MSN.com, December 29, 2009

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As a Birmingham, AL, divorce lawyer and family law attorney I get many questions from clients regarding all aspects of divorce, separation, child custody and other divorce-related topics. This is a difficult time for all parties in a divorce, but there are some key topics that concern many a spouse and parent affected by legal separation and especially divorce, namely visitation rights.

What is Standard Visitation?
Depending on where you live in Alabama, you may have questions on what is standard visitation for any minor children involved in a divorce. While the custodial parent has little concern in this area, in my experience shows that the non-custodial parent is the one who is almost always anxious about the court’s decision regarding visitation.

In theory, most domestic relations and/or juvenile court judges have very wide latitude when it comes to visitation schedules. In fact, the court usually decides on a case-by-case basis what is best for the children. Depending on the facts and circumstances, the visitation schedule for one couple can be very different from that of another.

While there exist visitation guidelines, it is widely understood that most judges settle on their own “standard visitation” schedules, which they place in their orders. Because each judge has rather wide discretion to fashion a special visitation schedule for a particular couple, the parties going through the divorce should be prepared for certain deviations. This is why it is always advisable to retain the services of a qualified divorce and family law attorney.

It is also important to note that even the final order can vary slightly from the basic order. For instance, in one jurisdiction a Wednesday night could maybe be added if the parties ask for it, but the court may not allow much more that that, in spite of any agreements between the two parties. However in an adjoining county, you may well find that a Wednesday night is already part of the standard order.

In the end, divorcing parents will find that cooperation is the best approach when it comes to visitation. This is because the visitation order usually only applies when the parties cannot agree on their own schedule -- serving as a minimum allotment of time for the non-custodial parent to get his or her share of visitation. But if you both can agree on your a mutual schedule, then your are free to create and follow that no matter what the judge’s order states.
 

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In Alabama, as in other parts of the country, there are certain issues that accompany divorce. As a Birmingham divorce and family law attorney, my office handles all aspects of legal separation, divorce, marital agreements and other legal matters affecting couples in Birmingham and the surrounding area. Anyone with kids who is going through or contemplating a divorce should consider the laws governing custody and visitation rights.

Custody in Alabama
The law provides for three different types of child custody: That of temporary custody, physical custody and, of course, legal custody. In Alabama, the courts typically encourage folks to share responsibility for their children by ordering joint custody whenever practical and physically possible. However, numerous factors must be considered before making this judgment.

It’s important to note that the courts in Birmingham, Montgomery and other cities and towns throughout the state are always able to deviate from the general rule as long as it is in the best interest of the child (or children).

Temporary Custody
This approach to custody, temporary, is exactly what it sounds like. Usually when a couple with children at home files for a divorce, the court will automatically enter and order for temporary child custody. This is just for the duration of the proceedings so that the children’s immediate interests are addressed, but the final custody decision always overrides this order at the conclusion of the divorce. The marital agreement should include the court’s final custody and visitation order.

Legal Custody
The final marital agreement will include a legal child custody order. Joint legal custody means that both parents make the major decisions that affect any children the couple may have. Naturally, the courts look for a cooperative attitude between the parents to ensure that the decisions will be made jointly and in the best interest of the children.

Alabama Joint Custody
An important point to make here is that the State of Alabama has a policy, which is governed by Alabama law that encourages the court to order joint custody in all custody cases, but allows the courts to deviate from that rule if it is in the best of the children.
If it deviates a court wishes to deviate from public policy, the court must state its findings in the record.

These are all practical considerations for any spouse to consider when children are involved. I always encourage people in this difficult time of their lives to consult early with a qualified divorce and family law attorney. A qualified legal expert can explain the various forms of custody, and answer any other questions you may have about divorce, custody or visitation orders.

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One of the biggest concerns among parents going through a divorce is the law’s affect on the custody of the children. In this respect, couples without kids have less to worry about, but having a qualified family law and divorce attorney at your side is the first step toward a better outcome. Here in Birmingham, and across Alabama as well, the courts have a great deal of discretion when it comes to child custody cases.

In any custody proceeding, the child or children in question become wards of the court, and as such the court is entirely concerned with any issues affecting those children. For example, in Ex parte Divine, the Alabama Supreme Court listed a dozen factors that must be considered when deciding upon the best interests of a child during a custody proceeding. These include:

• Sex and age(s) of the child or children
• Emotional, social, moral, material and educational needs of each child
• Type of home environment offered by each parent
• Each parent’s age, character, stability, and mental and physical health
• The individual parent’s capacity and interest in providing for the emotional, social, etc., needs of child or children
• Relationship between each child and each parent
• Relationship between the children themselves
• Effect on the children that disrupting, or continuing, an existing custodial arrangement would possibly cause
• Any preference(s) of child or children, assuming they are of sufficient age and maturity
• Recommendations of experts
• Any available alternatives
• Any relevant matters

Understand that past performance is often quite crucial in the court’s determination as to custody of a child. However, a spouse's prior performance may not be an accurate portrait of their future performance once the realities of a divorce become known. For example, a spouse who used to work at home taking care of the kids may not be able to stay home full-time once the divorce is final. This happens frequently as the financial situation of one of the two parents usually changes substantially after the divorce. The same can be said for his or her time constraints and other realities, which may have changed as well.

Because of this, the court has ultimate power in determining the custody situation with each child during the proceedings. This is just one more reason why my firm advocates divorce mediation and collaborative legal processes whenever possible. Parents should be the ones determining your child's best interests, not the courts.

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Divorce. It can be messy. It’s never easy. And many folks have been there. One thing I can tell you without hesitation, as an experienced Alabama divorce lawyer, you sometimes have to make a compromise to get the best outcome. Working out of Birmingham, AL, I’ve represented numerous spouses seeking separation or divorce. An uncontested divorce is not uncommong, but many divorces are fraught with challenges from both sides. Many of my past clients believed that mediation was out of the question, mainly because they were totally in the right and there “less-than-better-half” was completely in the wrong.

One thing you must consider when contemplating this kind of all-or-nothing approach is that the court may not agree with you. But listening to your divorce attorney is the best thing you can do. I and other family law attorneys across the state of Alabama know how divorce court functions. Whether you’re here in Birmingham, or out in Tuscaloosa, in and around Bessemer, or over by Gadsden, you’ll hear similar advice. Knowing when to compromise, versus taking your divorce to trial, is critical to a successful and satisfying outcome.

A family law attorney can guide you through a divorce with better judgment than if you drive the bus yourself. Without compromise, you will likely have to take your divorce case to trial, which in itself can be a difficult decision for any husband or wife. At the same time, by going to trial you are taking your chances not only with the outcome, but also with the cost -- in terms of time and money -- of extended litigation.

I’ll be the first to acknowledge that no person involved in a divorce wants to consent to an agreement that does not fully protect his or her property rights, future financial security or the custody of the children, if any. But naturally, if you do to go to trial with your divorce case, you will definitely benefit from an experienced and dedicated attorney by your side who will passionately advocate for the protection of your rights and seek the best possible results on your behalf.

So if you’re contemplating divorce, please consider the realities of your situation and try to put your emotions on the back burner. A little anger is healthy, but too much can cloud your thinking and cause you to make choices that you may regret later on. Pay attention to what your lawyer has to say. His or her opinion can be more valuable than you might imagine.
 

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Joint Custody is preferred and deemed to be in the best interest of the child.  Alabama Code section 30-3-150 makes it state policy to encourage joint custody whenever both parents "have shown the ability to act in the best interests of their children." The court must consider joint custody, but is free to grant custody in any form it determines is in the best interest of the child.  The court looks to several factors when deciding to award joint custody: 

• The court looks at the parents wishes regarding joint custody
• The parents willingness and ability to work together and make decision in the best interest of the child
• Ability of each parent to foster the child's love for their ex
• Potential for any kind of abuse or kidnapping
• Distance between parents and practical geographic implications of joint custody
• The court may order a form of joint custody without the consent of both parents, when it is in the best interest of the child.

****When both parents request joint custody, joint custody is presumed to be in the best alternative.  Thus, in Alabama, joint custody is required unless the court makes specific findings as to why it is not.  Check out this helpful guide listing some Alabama Divorce and Custody code sections ,as well as other valuable divorce and child custody resources. 

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