Senator Larry Stutts (R-Sheffield) introduced a bill to the senate judiciary committee this month that could absolutely transform custody cases in Alabama.
If the bill becomes law, the standard visitation of every-other-weekend could become much closer to 50/50 time.
SB 211 would change the definition of “joint custody.” Joint custody is currently defined and would continue to be defined as “Joint legal custody and joint physical custody,” according to Ala. Code 30-3-151(1).
Let’s break down that definition and what the changes would mean.
Joint legal custody is currently defined as “Both parents have 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. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions,” according to Ala. Code 30-3-151(2).
The new definition for “joint legal custody” would clarify that even though one party may have the power to make decisions, that does not mean that they can negate the responsibility of discussing those decisions with the other parent and to consider the other parent’s wishes and concerns, according to the bill.
The bombshell in this bill is how the definition of “joint physical custody” would change. Currently, joint physical custody is described this way: “Physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time,” the bill says.
The new bill would take out the words “Joint physical custody does not necessarily mean physical custody of equal durations of time“ and actually define the vague terms “frequent and substantial contact.” SB 211 explains that “Frequent and substantial contact means that the child has equal or as approximately equal as possible time with both parents.”
This definition of frequent and substantial contact would completely transform the norm of the every-other-weekend-parent visitation plan.
Further, SB 211 adds that there is a rebuttable presumption that joint custody is in the best interest of the child, and this rebuttable presumption may be overcome only by clear and convincing evidence, set forth in written findings of fact, that joint custody is not in the best interest of the child. The law as it stands now says that “The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child.”
The bill would require the court to give a written finding of fact to deviate from the general standard that joint custody should be awarded.
If this bill passes, the Legislature would give clear direction to the trial courts that they want children to have equal or as approximately equal as possible time with both parents except in egregious cases. A similar bill did not make it out of committee last year.
Editor’s note: Read the Alabama Family Rights Association’s thoughts on SB 211 here.
Sam Bone is a Gadsden divorce lawyer where he practices in the areas of divorce, custody, and criminal defense.
