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 attorneyat 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.