Full question:
My husbands ex-wife has left his children with him for 6 weeks. She is not seeing them or calling them during this time. Is there something we can do about getting custody during this period?
- Category: Divorce
- Subcategory: Child Custody
- Date:
- State: Alabama
Answer:
It is possible for abandonment to be found as the basis for a modification of a custody order, or termination of parental rights. It will be a matter of subjective determination for the court, based on all the facts and circumstances involved in each case.
A parent can ask the court, via motion, for a modification of it's previous child custody order. The paramount consideration in determining the custody of a child is the best interest of the child. Custody is conditional and the custodian to whom child has been awarded has no fixed permanent right, continuing only to such time as court shall determine, having in view best interests of child.
The Alabama Child Protection Act deals with child protection and custody as follows:
§ 26-18-3(1) Abandonment. A voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his presence, care, love, protection, maintenance or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.
§ 26-18-5. Petitions; parties who may file.
(a) A petition may be filed by the Department of Human Resources, any public or private licensed child-placing agency or parent, with permission of the court, or any interested party.
§ 26-18-7. Termination of parental rights.
(a) If the court finds from clear and convincing evidence, competent, material and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such 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 attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
(4) Conviction of and imprisonment for a felony.
(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
a. Murder or voluntary manslaughter of another child of that parent.
b. Aiding, abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of another child of that parent.
c. A felony assault or abuse which results in serious bodily injury to the surviving child or another child of that parent. The term "serious bodily injury" means bodily injury which 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.
(8) That parental rights to a sibling of the child have been involuntarily terminated.
(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:
(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
(3) Failure by the parents to maintain consistent contact or communication with the child.
(4) Lack of effort by the parent to adjust his circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.
(c) In any case where the parents have abandoned a child and such abandonment continues for a period of six months next preceding the filing of the petition, such facts shall constitute a rebuttable presumption that the parents are unable or unwilling to act as parents. Nothing in this subsection is intended to prevent the filing of a petition in an abandonment case prior to the end of the four-month period.
§ 26-18-8. Permanent legal custody of child.
If the court determines that the parents of a child are incapable to act as parents and terminates their parental rights, it may:
(1) Transfer the permanent legal custody of the child to the department or to any public or private licensed child-placing agency able and willing to assume the care and maintenance of the child, with or without an order to proceed with plans for the adoptive placement of the child. A court order which terminates parental rights and awards permanent custody to the Department of Human Resources or to a licensed child-placing agency shall mean that the said department or said licensed child-placing agency shall have authority to make permanent plans for the child, including the authority to place for adoption and consent to adoption.
(2) Transfer the permanent legal custody of the child to a relative or other individual who, after study by the department, is found to be able to properly receive and care for the child
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
