Month: December 2015

Child Testimony in Custody Cases

Child Testimony in Custody Cases

A question that often arises in custody disputes is whether the child’s preferences are considered by the court. Certainly, the parents will have their own opinions regarding custody and visitation. The reality is that many children also have a preference as to who they want to live with after a divorce and how often they want to visit the non-custodial parent. But will the court consider the child’s preferences? Many states require the court to take testimony from the child during custody proceedings. In Alabama, it depends.

The basics of child custody in Alabama

In cases where parents are unable to agree on child custody terms, the judge will make that decision for them. In Alabama, courts are required to give custody to either the mother or the father in the case of a divorce. In deciding on which parent should have custody, or whether custody should be joint, the legal standard is the best interest of the child. This would include the child’s safety and well-being, the child’s age and gender, and child’s emotional, social, and moral needs. The court will also consider each parent’s home environment, age, character, stability, and mental and physical health. There are many other factors.

When a child’s preference is considered in Alabama

When the child involved is mature enough to articulate an informed opinion, the court will consider the child’s preference. There is no specific age at which an Alabama court must consider the child’s opinion. Instead, courts make that determination on a case by case basis. The child’s opinion may not control the judge’s decision, but it can weigh heavily.

Courts consider the child’s underlying reasons

When the court considers a child’s preference, it will also consider the reasons for that preference. For example, if the child is merely angry with one parent for disciplining the child, then the preference may not be given much weight. If, however, the child describes a better relationship with one parent or that one parent has been providing most of the care, the child’s preference would likely be given more weight. Regardless, the best interests of the child will always prevail.

Will the child testify in court?

Alabama law discourages requiring a child to testify about custodial preferences in court.  Most often, the child is brought into a judge’s chambers to testify in front of the parents’ attorneys, but not in the parents’ presence. Both parents must agree to the judge speaking with the child directly.

If you have questions regarding child custody, or any other family law matter, contact us online or by calling Brad J. Latta at (205) 401-1309.

 

Supervised Visitation

When to Consider Supervised Visitation

Divorce typically takes its toll on more than just the spouses. If there are children from the marriage, the need to maintain as close a relationship with each parent is important. Most experts consider the opportunity for both parents to continue to have a strong presence in the children’s lives to be in the best interest of those children. Unless, of course, it isn’t. Whenever there are any concerns regarding a child’s safety or well-being while in the custody of one parent in particular, then it may be time to consider supervised visitation.

The general right to visitation

Ordinarily, the parent who has not been awarded custody of the child is entitled to visitation. The visitation arrangement is only limited by the court when it has been determined that unrestricted visitation might endanger the child physically, emotionally, or morally.

A court determination is required

Before the noncustodial parent’s right to visitation can be denied, or even limited, the court must conduct a hearing to determine what is in the best interest of the child. The noncustodial parent must be given notice of the proceedings so he or she can have an opportunity to be heard by the court. If it is determined that the non-custodial party is entitled to visitation, but there are concerns about health and/or safety issues, the court will often consider supervised or restricted visitation, meaning that the visits must take place in public or with a third-party present.

Common reasons for supervised visitation

While every family’s situation is unique and the concerns are varied, there are certain situations that typically result in restricted or supervised visitation. For instance, where there is a risk of emotional harm, visitation may be supervised in order to avoid an extremely upsetting situation for the child. Most often, this occurs when unusual behaviors indicate emotional problems arising from parental visits. Depending on the child’s age and maturity, courts may also consider the child’s desire to have supervised visitation.

Personal factors of a parent that may require supervised visitation

A parent that has a diagnosed mental illness does not automatically have limited rights to visitation; it may be restricted by the court if the condition at issue could potentially place the child at risk of harm. The same is true for parents who are known to abuse drugs or alcohol.

If you have questions regarding child visitation, or any other divorce issues, contact attorney Brad J. Latta online, or by calling (205) 401-1309.

Wrongful Adoption Claims

Wrongful Adoption Claims

Over the last three decades, the tort of “wrongful adoption” has become more prevalent. Essentially, “wrongful adoption” is a type of fraud claim based on the adoption agency’s failure to properly investigate and communicate knowledge about a child to the prospective parents. In most cases, it involves medical or developmental issues that are withheld from the adoptive parents.

The Elements of a Wrongful Adoption Claim

Many states now recognize the claim for wrongful adoption, though the basic elements may differ slightly. Most wrongful adoption claims allege a failure to act in good faith; this means the legal elements often include misrepresentation, fraud, negligence, or contractual breach of good faith. Courts look at whether the information the adoption agency failed to disclose was “material.” Courts consider information “material” if it would have impacted the adoptive parents’ decision to adopt.

The Opportunity for an Informed Decision

A successful adoption most always depends on the informed decision of the prospective parents. If the parents are unable to afford to support a child because of medical or emotional issues the parents were not aware of when the decision was made, then the family will likely become a liability on the state and on society. For this reason, it is important that prospective parents are provided all of the pertinent information on the child that is available.

Hidden Releases Used by Adoption Agencies

Unfortunately, many courts have cited a long history of adoption agencies including release clauses in their adoption contracts, which limits their liability for withholding medical information about the child or the child’s birth parents. While adoption agencies are typically barred from disclosing identifying information regarding the birth parents, this does not include medical or psychiatric information which is often extremely important information for the adoptive parents.

If you have questions regarding adoptions, or any other family law issues, contact attorney Brad J. Latta online, or by calling (205) 401-1309.