Safeguarding Fundamental Liberty Interest Rights of

Children and Families In the State of Alabama

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A Child Custody Law Strictly Written to Safeguard Childrens Fundamental Rights to Freedom of Associations with each Fit Parent in Accordance to the U.S. Constitution and Alabama Constitution.

2012

v12-4-11 Subject to Revision Latest at ALFRA.org

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2012 Alabama Childrens Family Act

The 2012 version has been revised since 2011 to include concerns of the domestic violence coalition. The 2012 bill also addresses 19 of the 23 concerns by Madison County Circuit Court Judge Billy Bell. The four (4) concerns not addressed by Judge Bell were resolved by the state Supreme Court opinion issued on June 10, 2011, in Ex parte E.R.G. and D.W.G.

SYNOPSIS:

In Ex parte E.R.G., quoting the Supreme

Court of the United States, is clear the U.S. Constitution, "[R]equires that a prior and independent finding of parental unfitness - by clear and convincing evidence - must be made before the court may proceed to the question of whether an order disturbing and limiting a parent's 'care, custody, and control' of his or her child is in that child's best interests." Page 1

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In addition, the E.R.G. Court quotes a long line of law since 1923 from the Supreme Court of the United States including Justice Scalia's dissent in Troxel v. Granville that, "recognizes that the right of parents to make decisions regarding a child's care, control, education, health, and religion, as well as with whom the child will associate, is a fundamental right that arises "as an inherent consequence of the parent-child relationship independent of any case law, statute, or constitutional provision." The Troxel Court said, "The Due Process Clause - of the U.S. Constitution 14th Amendment - does not permit a State (judge) to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a better decision could be made."

Under existing law, there is a presumption that joint custody is in the best interest of the child when each parent requests it in a divorce or other proceeding involving child custody, but as a matter of practice, each parent may not share equally in the rearing of the child when joint custody of a child is ordered by a court. This bill would state the intent of the Legislature to make Alabama law regarding child custody consistent with current social science data and federal welfare reform laws, to safeguard due process, equal protection and liberty interest rights found in the U.S. Constitution and Page 2

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the Alabama Constitution for Alabama children, and to ensure children have freedom of association with each of the two fit parents. This bill would require a parenting plan in every case involving the custody of a child. This bill would require the plan to contain certain provisions including a designation of which parent may exercise primary authority in making childrearing decisions regarding custody of a child at designated times. This bill would require the court to order equal parenting time with each of the two fit parents unless one or both parents is determined to be unfit, or absent an agreement between the parents not to adopt a equal parenting time arrangement. This bill will require a finding by a court that a parent is unfit to be made in writing and supported by clear and convincing evidence.

A BILL TO BE ENTITLED AN ACT Relating to child custody, to amend Sections 30-3-150 to 30-3-155, inclusive, and 30-3-157, Code of Alabama 1975, to require a parenting plan in all cases involving custody of a child; to provide requirements for parenting plans; to provide requirements for a finding by a court that a parent is unfit; to Page 3

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require written findings; to provide for exercise of primary parental decision making authority by a parent pursuant to a parenting plan; to provide standards for appellate review of custody determinations; and to add Section 30-3-158 to the Code of Alabama 1975; and to repeal Sections 30-3-1 and 30-3-2, Code of Alabama 1975. BE IT ENACTED BY THE LEGISLATURE OF ALABAMA: Section 1. Sections 30-3-150 to 30-3-155, inclusive, and

Section 30-3-157, Code of Alabama 1975, are amended to read as follows: 30-3-150. Joint Custody - It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. Joint custody does not necessarily mean equal physical custody. (a) This article shall be known and may be cited as the Alabama Childrens Family Act. (b) The Legislature finds that it is the public policy of this state that children with two fit parents have liberty interest rights protected by the U.S. Constitution and the Page 4

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Alabama Constitution, and each child shall have a fundamental right to freedom of association and equal access with each of the two fit parents and the respective families, the right to be guided and nurtured by each fit parent, the right to have major decisions made by the application of the wisdom, judgment and experience of each fit parent regardless of marital status. Each of the two fit parents and each child have a fundamental constitutional right to a parent-child relationship unless one or both parents is proven unfit by clear and convincing evidence. A divorce from a spouse is not a divorce from the child. Likewise, if unwed parents separate from each other that is not a separation from parent and child. Therefore, there is a fundamental importance of the parent-child relationship to the welfare of the child to each fit parent with the child, and the relationship between a child and each fit parent. Any parental decision, unless clearly harmful to the child, should be a parental determination made by each of the two fit parents. 30-3-151. For the purposes of this article the following words shall have the following meanings: (1) Joint custody. Joint legal custody and joint physical custody. (2) Joint legal custody. Both parents have equal rights and responsibilities for major decisions concerning Page 5

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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. (3) Joint physical custody. 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. (4) Sole legal custody. One parent has sole rights and responsibilities to make major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. (5) Sole physical custody. One parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court. (1) PARENTING PLAN. A written document, by the

parents, accepting responsibility for the care and well-being of their minor child(ren) and providing a detailed plan for the future care of their minor child(ren). The parenting plan

shall set out parenting times including, but not limited to, residential times, residential times for major holidays, birthdays and school vacation time. Page 6 The provisions of the

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parenting plan should cover the matters relevant to the care and custody of the minor child(ren) as set forth in this act.

(2)PARENTAL UNFITNESS. A parent that fails to properly care for his or her child and maintain the emotional health and overall well-being of the child in such a manner the failure will seriously harm. (2)(a) FACTORS TO DETERMINE PARENTAL UNFITNESS. (a) Competent, material, and relevant in nature that one parent has committed an act of domestic violence against the other parent or to a child pursuant to Section 30-3-130 to 30-3-135, inclusive. (b) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parent of a child is unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parent renders them unable to properly care for the child and that the conduct or condition is unlikely to change, the court may limit child custody solely to one parent. In determining whether or not the parent is unable or unwilling to discharge their responsibilities to and for the child the court shall consider the following factors including, but not limited to, the following: Page 7

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(1) That the parent has willfully abandoned the child. (2) Emotional illness, mental illness, or mental deficiency of a parent, or use of illegal drugs, or the abuse of alcohol or prescription medication, of a duration or nature as to render the parent unable to care for needs of the child. (3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child or the other parent, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child or the other parent, or the child or other parent is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated. (4) A conviction that results in imprisonment for a felony. (5) Commission by a parent of any of the following: a. Murder or manslaughter. b. Aiding, abetting, attempting, conspiring, or soliciting to commit murder or manslaughter. c. A felony assault or abuse which results in serious bodily injury to another person, the surviving child or another child of that parent or to the other parent. The term serious bodily injury shall mean bodily injury which Page 8

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involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. (6) Failure by the parent to maintain consistent parenting time with the child in accordance with the parenting plan, and whether agreed to by the parties or set by order of the court. (7) Failure by the parent to maintain consistent contact or communication with the child provided there has been no interference of contact or communication by the other parent. (8) If either parent demonstrates a pattern that willfully prevents the child from having freedom of associations with the other parent without just cause, there shall be a rebuttable presumption the parent denying such freedom of associations is unfit for joint custody and the non-offending parent shall have sole custody of the child. "(9) If either parent willfully refuses to adjust his or her circumstances to meet the needs of the child in accordance with the parenting plan, there shall be a rebuttable presumption the parent refusing to adjust his or her circumstances is unfit for joint custody and the non-offending parent shall have sole custody of the child.."

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(3) RESIDENTAL PARENTING TIME. The allotment of time a child spends in the physical custody and control of a parent. (4) SHARED LEGAL CUSTODY. A child custody arrangement where each of the two fit parents, unless the parents have agreed otherwise, have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, selecting residential parenting times, the education of the child, health care, religious activities. (5) SHARED PHYSICAL CUSTODY. A child custody arrangement where each of the two fit parents have equal physical custody, unless the parents have agreed otherwise. (6) SOLE LEGAL CUSTODY. A child custody arrangement where one parent has sole rights and responsibilities to make major decisions concerning the child, including, but not limited to, the education, health care, and religious training of the child. This parent has primary physical custody and the other parent has rights to parenting time as determined by the court. This custody arrangement shall be limited to situations where one parent has been proven unfit consistent with this article or otherwise by agreement of the parties. 30-3-152 (a) The court shall in every case consider joint custody but may award any form of custody which is Page 10 training, and extra-curricular

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determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors: (1) The agreement or lack of agreement of the parents on joint custody. (2) The past and present ability of the parents to cooperate with each other and make decisions jointly. (3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent. (4) Any history of or potential for child abuse, spouse abuse, or kidnapping. (5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody. (b) 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. (c) If both parents request joint custody, the presumption is that joint custody is in the best interest of the child. Joint custody shall be granted in the final order of the court unless the court makes Page 11

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specific findings as to why joint custody is not granted. The Legislature finds this article is consistent with liberty interest rights and equality safeguarded by the United States Constitution and the Alabama Constitution. In every petition filing for divorce where the divorcing or never married couple have minor children, absent a legal finding by the court of parental unfitness by clear and convincing evidence, in all contested cases the court shall ensure that: (1) In making an order or judgment relative to the care of a child, the parental rights of each of the two fit parents shall be held to be equal. (2) In making an order or judgment relative to parenting time of a child the parenting time between each parent shall be held to be equal. (3) Upon the filing of an action in accordance with this article and until a judgment on the merits is rendered, the parents shall have temporary shared legal custody and temporary shared physical custody of any minor child. Notwithstanding the forgoing, the court may enter an order for temporary sole legal and/or physical custody to one parent if each parent agrees, or following an evidentiary hearing the court finds that one parent is unfit for shared custody consistent with this article. A court finding of domestic violence raises a rebuttable Page 12

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presumption that it is detrimental to the child to be placed in shared or legal custody with the perpetrator of domestic violence pursuant to Code of Alabama 1975, Section 30-3-130 to 135, inclusive. (4) In every case when making a determination of parental unfitness, by clear and convincing evidence, enter an order with written findings of fact. 30-3-153. (a) In order to implement joint custody, the court shall require the parents to submit, The Parents, prior to a divorce decree, and/or at time of a petition to modify child custody,

shall create a parenting plan with provisions covering matters relevant to the care and custody of the child, including, but not limited to, all of the following: (1) The care and education of the child. (2) The medical and dental care of the child. (3) Holidays and vacations. (4) Child support. (5) Other necessary factors that affect the physical or emotional health and well-being of the child. (6) Designating the parent possessing primary authority and responsibility regarding involvement of the minor child in academic, religious, civic, cultural, athletic, and other activities, and in medical and dental care if the parents are Page 13

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unable to agree on these decisions. The exercise of this primary authority is not intended to negate the responsibility of the parties to notify and communicate with each other as provided in this article. "(1) A detailed residential parenting time schedule including, but no limited to, regular residential time, residential times for holidays, birthdays and school vacation times. (2) Designating which parent may exercise primary authority and responsibility regarding involvement of the minor child in academic, religious, civic, cultural, athletic, and other activities, including medical, vision and dental care. (3) Stipulating that each parent shall make decisions regarding the day-to-day care and control of each child while the child is residing with that parent. Regardless of the allocation of decision making in this parenting plan, either parent may make emergency decisions affection the health or safety of the children. (5) Birthdays, Holidays and vacations. (6) If the parents are unable to decide on a parenting plan, there shall be a rebuttable presumption that the court shall order a parenting plan, and the parenting plan shall be held to be equal consistent with provisions of this article. 30-3-154. Page 14

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(a) Unless otherwise prohibited by court order or statute, all records and information pertaining to the child, including, but not limited to, medical, psychological, psychiatric, dental, scholastic, athletic, extracurricular, and law enforcement, shall be equally available to both parents, in all types of custody arrangements. (b) Either parent may request, in writing, that a copy of the child's report card, notice of school attendance, names of teachers, class schedules, standardized test scores and any other records customarily available to parents be furnished directly to said parent making the request. The request shall be accompanied by the parent's or parents' current mailing and/or email address, and the local education board or other authority shall send a copy of the report card, notice of school attendance, names of teachers, class schedules, standardized test scores and any other records customarily available within twenty (20) business days of the written request of the parent. (c) A court upon proven findings by clear and convincing evidence that a parent is unfit may deny any information concerning the child to the noncustodial or nonresident parent. 30-3-155 In making a determination of child support, the court shall apply Rule 32 of the Alabama Rules of Judicial Administration. Page 15

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All Courts issuing judgments, orders or opinions, whether temporary or final, shall list written findings of fact and a statement of law to support the decision. 30-3-157. This article shall not be construed as grounds for modification of an existing order. This article shall not be construed as affecting the standard applicable to a subsequent modification. Section 2. Section 30-3-158, is added to the Code of Alabama 1975, as follows: 30-3-158. This article shall apply to all actions filed after the effective date of the law. Section 3. Section 30-3-1 of the Code of Alabama 1975, providing for custody and education of children upon grant of divorce, and Section 30-3-2 of the Code of Alabama 1975, providing for custody and education upon voluntary separation, are repealed. Section 4. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

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