Best Interests of the Child


One of the most difficult and grueling aspects of a divorce or separation is child custody. Studies show that where the child goes and with whom that child associates are crucial factors in shaping the child’s life. Because divorce and separation are difficult for young children, it is imperative that courts properly determine custody arrangements for a child upon the divorce or separation of that child’s parents.

To handle this issue, Alabama family law courts apply a “best interest of the child” standard when determining child custody cases. Read further for a more detailed explanation of this legal standard.

The Tender Years Doctrine

Prior to 1981, when parents disputed rights in child custody, Alabama law provided for the “Tender Years Doctrine,” wherein a child under the age of 7 be in the mother’s care, custody and control, unless there was compelling evidence that the child’s best interest was to be with the father. As a result, Alabama courts almost exclusively placed a child within the mother’s custody. This doctrine created a reality that compelled a father to demonstrate that the mother was in some way unfit to raise the child. Only then could the father be considered for custody.

The Alabama Supreme Court abolished the Tender Years Doctrine in the 1981 case of Ex Parte Devine. In that case, the Alabama Supreme Court explained that the Tender Years Doctrine was “an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex…By requiring fathers to carry the difficult burden of affirmatively proving the unfitness of the mother, the [tender years doctrine] may have the effect of depriving some loving fathers of the custody of their children, while enabling some alienated mothers to arbitrarily obtain temporary custody.”

Best Interests of the Child

The Supreme Court of Alabama replaced the Tender Years Doctrine with a different standard: the Best Interests of the Child standard. This law created a new test to determine child custody. The court listed twelve non-exclusive factors in determining the best interest of the child:

  • The sex and age of the children;
  • The characteristics and needs of each child, including their emotional, social, moral, material and educational needs;
  • The respective home environments offered by each party;
  • The characteristics of those seeking custody, including age, character, stability, mental and physical health;
  • The capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children;
  • The interpersonal relationship between each child and each parent;
  • The interpersonal relationship between the children;
  • The effect on the child of disrupting or continuing an existing custodial status;
  • The preference of the child, if the child is of sufficient age and maturity;
  • The report and recommendation of any expert witness or other independent investigator;
  • The available alternatives; and
  • Any other relevant matter which may be present.

No one factor is most important and a court need not consider all factors.

As a result of the best interests of the child test, child custody became less definitive and increasingly subject to litigation. Nonetheless, the court felt that this test was better, more equitable, and consistent with the state constitution.

If you are in involved in a child custody dispute, contact the law firm of Parkman White, experienced family law litigators.

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