The Definition(s) of Child Custody (ˈchī(-ə)ld \ ˈkə-stə-dē) in Alabama
Committed parents and caring relatives, and even several lawyers and judges, routinely misunderstand and misapply the legal definitions of custody in Alabama. This creates a headache, at best. It can cost families and parties precious time, energy and financial resources more often. And, at worst, it can put children in danger.
There are 2 different Alabama Code sections which expressly define the term “custody” when referring to child custody (as opposed to criminal law applications). One is in the “DR” Code and one is in the “JU” Code. There’s a third concept of a “guardian” in Probate proceedings which is similar and used less often but still practically applies to our discussion. Which of these definitions does your Custody order use? Or is it just something the parties or Judge threw together using lay terminology and not legal definitions?
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30-3-151, Ala. Code 1975. Definitions.
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 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.
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12-15-102, Ala. Code 1975. Definitions.
When used in this chapter, the following words and phrases have the following meanings: . . . (16) LEGAL CUSTODY. A legal status created by order of the juvenile court which vests in a legal custodian the right to have physical custody of a child under the jurisdiction of the juvenile court pursuant to this chapter and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, clothing, education, and medical care, all subject to the powers, rights, duties, and responsibilities of the legal guardian of the person of the child and subject to any residual parental rights and responsibilities. A parent, person, agency, or department granted legal custody shall exercise the rights and responsibilities personally, unless otherwise restricted by the juvenile court.
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~click here for Foxtrot’s Editorial Comments on the “JU” Definitions of Child Custody ~
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26-2A-20, Ala. Code 1975. General Definitions.
As used in this chapter the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:
. . .
(7) GUARDIAN. A person who has qualified as a guardian of a minor or incapacitated person pursuant to parental or spousal nomination or court appointment and includes a limited guardian as described in Sections 26-2A-78(e) and 26-2A-105(c), but excludes one who is merely a guardian ad litem.
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(22) WARD. A person for whom a guardian has been appointed. A “minor ward” is a minor for whom a guardian has been appointed solely because of minority.
26-2A-78, Ala. Code 1975. Powers and Duties of Guardian of Minor`.
(a) A guardian of a minor ward has the powers and responsibilities of a parent regarding the ward’s health, support, education, or maintenance, but a guardian is not personally liable for the ward’s expenses and is not liable to third persons by reason of the relationship for acts of the ward.
(b) In particular and without qualifying the foregoing, a guardian shall:
(1) Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward’s capacities, limitations, needs, opportunities, and physical and mental health;
(2) Take reasonable care of the ward’s personal effects and commence protective proceedings if necessary to protect other property of the ward;
(3) Apply any available money of the ward to the ward’s current needs for health, support, education, or maintenance;
(4) Conserve any excess money of the ward for the ward’s future needs, but if a conservator has been appointed for the estate of the ward, the guardian, at least quarterly, shall pay to the conservator money of the ward to be conserved for the ward’s future needs; and
(5) Report the condition of the ward and of the ward’s estate that has been subject to the guardian’s possession or control, as ordered by the court on petition of any person interested in the ward’s welfare or as required by court rule.
(c) A guardian may:
(1) Receive money payable for the support of the ward to the ward’s parent, guardian, or custodian under the terms of any statutory benefit or insurance system or any private contract, devise, trust, conservatorship, or custodianship, and money or property of the ward paid or delivered pursuant to Section 26-2A-6;
(2) If consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, take custody of the person of the ward and establish the ward’s place of abode within or without this state;
(3) If no conservator for the estate of the ward has been appointed, institute proceedings, including administrative proceedings, or take other appropriate action to compel the performance by any person of a duty to support the ward or to pay sums for the welfare of the ward;
(4) Consent to medical or other professional care, treatment, or advice for the ward without liability by reason of the consent for injury to the ward resulting from the negligence or acts of third persons unless a parent would have been liable in the circumstances;
(5) Consent to the marriage or adoption of the ward; and
(6) If reasonable under all of the circumstances, delegate to the ward certain responsibilities for decisions affecting the ward’s well-being.
(d) A guardian is entitled to reasonable compensation for services as guardian and to reimbursement for room, board, and clothing personally provided to the ward, but only as approved by order of the court. If a conservator, other than the guardian or one who is affiliated with the guardian, has been appointed for the estate of the ward, reasonable compensation and reimbursement to the guardian may be approved and paid by the conservator without order of the court controlling the guardian.
(e) In the interest of developing self-reliance on the part of a ward or for other good cause, the court, at the time of appointment or later, on its own motion or on appropriate petition or motion of the minor or other interested person, may limit the powers of a guardian otherwise conferred by this section and thereby create a limited guardianship. Any limitation on the statutory power of a guardian of a minor must be endorsed on the guardian’s letters or, in the case of a guardian by parental appointment, must be reflected in letters that are issued at the time any limitation is imposed. Following the same procedure, a limitation may be removed and appropriate letters issued.
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~click here for Foxtrot’s Editorial Comments on the Probate Definitions of Child Custody ~
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This article contains general information and should not be construed as legal advice for you and or your unique situation. If you would like to speak more about how you, as a Committed Parent or Caring Relative, can be more effective in your Child Custody case, please visit www.ThinkFoxtrot.com/public_calendars/ to schedule your initial consultation at one of our offices. ~SW, Foxtrot