State Laws and Legislation

Alabama Custody and Visitation Law

Alabama courts use a parent’s sexual orientation to deny, restrict or modify custody and visitation. There are no reported or published opinions dealing with transgender parents or same-sex co-parents.

Custody and Visitation for Gay, Lesbian and Bisexual Parents
Alabama law states: “The court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper, having regard to the moral character and prudence of the parents and the age and sex of the children; and pending the action, may make such orders in respect to the custody of the children as their safety and well-being may require.”

In one 2002 case, Ex Parte H.H., a mother petitioned the court to modify a custody order. She asked the court to transfer custody from the father to her. She argued that the father’s abuse was a “change in circumstances” that warranted a modification. The trial court refused to modify the order. The appellate court reversed the trial court’s denial of the modification. The Alabama Supreme Court, in turn, reversed the appellate ruling, agreeing with the trial court’s denial of modification. The majority opinion reversed the appellate decision based on the legal standard governing when a custody decree may be modified. The fact that the mother was a lesbian did not enter into any of the courts’ decisions. In a concurring opinion, however, then-Alabama Supreme Court Chief Justice Roy Moore stated, regarding the mother’s sexual orientation: “The effect of such a lifestyle upon children must not be ignored, and the lifestyle should never be tolerated. … Any person who engages in such conduct is presumptively unfit to have custody of minor children under the established laws of the state.”

In a 1998 case, R.W. v. D.W.W., the Alabama Supreme Court upheld visitation restrictions placed on a mother that prevented her from seeing her children in the presence of her same-sex partner. The court declared that because the mother and her partner were “active in the homosexual community,” “frequent[ed] gay bars” and “openly display[ed] affection in the children’s presence,” the children were at grave risk of being harmed by exposure to their mother’s “lesbian lifestyle.” The court ruled that restricted visitation was proper, “to shield a child from the harmful effects of a parent’s illicit sexual relationships.” One justification offered for this restriction on the mother’s visitation rights was the fact that sodomy was an illegal activity in Alabama. Since the U.S. Supreme Court declared sodomy laws unconstitutional in Lawrence v. Texas (2003), this justification for restricting a parent’s rights based on his or her sexual orientation can probably no longer be offered as justification to deny or restrict visitation or custody rights.

Also in 1998, in Ex parte J.M.F., the Alabama Supreme Court upheld a trial court’s modification of custody in favor of the heterosexual father. The trial court based this change in custody (from mother to father) on the mother’s openness about her same-sex relationship and the father’s remarriage, which created a more “traditional” family alternative for the child. In this case, when the mother and father divorced, the father knew the mother was involved in a same-sex relationship. The mother had custody of the child, and eventually her same-sex partner moved in with them. The mother and father agreed that the mother would keep her relationship discreet, maintaining that her partner was her “roommate” in front of the child. When she became more open about her relationship, and when the father remarried and offered to take custody of the child, the trial court found that the change in circumstances warranted a reopening of the custody order. The court effectively prevented the child from being in the presence of the mother’s partner under any circumstances. In light of the facts and the evidence presented, the Alabama high court found that the trial court did not abuse its discretion in making a new award of custody to the father. On remand, the Court of Civil Appeals of Alabama affirmed the Supreme Court decision.

In another 1998 divorce case, T.K.T. v. F.P.T., the court awarded custody to the mother. The father appealed. One of his arguments was that the trial court based its determination of custody solely on the fact that he was gay. The appellate court rejected this argument, saying, “The trial courts considered numerous factors in determining the best interest of the children. For this reason, we cannot fault the trial court.”

Citations: ALA. CODE §30-3-1 (2003); Ex Parte H.H., 830 So. 2d 21(Ala. 2002); R.W. v. D.W.W., 717 So. 2d 799 (Ala. 1998); Ex parte J.M.F., 730 So.2d 1190 (Ala. 1998); J.B.F. v. J.M.F., 730 So.2d 1197 (Ala.Civ. App. 1998). T.K.T. v. F.P.T., 716 So. 2d 1235 (Ala. Civ. App. 1998).

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Updated: Wed, October 12, 2005 - 11:00:48