Who Gets Custody?

As family law attorneys, we get asked all the time, “How old do my kids have to be before they decide who to live with?” or “Do my kids have to go to visitation if they don’t like the other parent?”

Under Alabama law, however, your children are not the ones who get to decide which parent they live with or see. This can be aggravating if you are the parent stuck with a child begging not to see the other parent; however, it is a protection for both parents. If you, as the custodial parent, are setting reasonable boundaries, making sure your kids do their homework, get good grades and stay out of trouble, you may seem like a drag to a teenager who gets to do whatever they want at the other parent’s house. Taking in a multitude of considerations and not just the wishes of the children can prevent custody or visitation being changed capriciously when one parent alienates affection, or even just becomes the “fun” parent.

Judges are supposed to keep the best interest of the children as the major determining factor in custody decisions. Most judges feel that children having good relationships with both parents is, in fact, in the best interest of the child. Even if you no longer have a good relationship with the other parent, the children should be allowed to form a relationship with them.

Once a custody decision is made, it is very hard to change it in Alabama. There must be a substantial change in circumstances such that the change in custody will materially benefit the best interest and welfare of the minor child. It has to be such a positive change that it will outweigh the inherently disruptive effect of the change in custody. This is not an easy standard to meet, so think long and hard about the initial custody agreement if you settle your case. It is not enough that you just began working less and can spend more time with the child; you must show that there is a serious net benefit to changing who the children live with.