A bill known as the “Children's Equal Access Act,” sponsored by Sen. Larry Stutts (R-Tuscumbia), has passed the Alabama Senate and is expected to be voted on by the House this week.
Senate Bill 211 provides that in child custody proceedings, whether pursuant to a divorce case or not, there shall be a rebuttable presumption that joint custody is in the best interests of the child.
Stutts said the bill cleared the Senate last week and was scheduled to be on the House Judiciary Committee schedule March 21 before a vote on the entire House floor. Stutts said he's confident the bill will clear the House and become law.
“It's an encouraging sign that the Speaker of the House (Rep. Mac McCutcheon, R-Huntsville) is one of the co-sponsors of the bill. I am encouraged it will get favorable response in the House,” Stutts said.
This is not the first time such legislation has been introduced. A similar bill was presented the last two years but efforts to pass the bill into law failed in large part due to opposition from Alabama judges who believe their legal 'hands will be tied' with a presumption of joint custody.
“The fact is we have guidelines for judges on all sorts of things,” Stutts said. “Take sentencing guidelines in criminal cases. There are starting points in the law for all sorts of things that a judge has to decide,” Stutts said.
Stutts said a 2008 joint House/Senate resolution passed that formed an Alabama Child Custody Task Force. He said the exact language in SB 211 about a rebuttable presumption for joint custody was found in the Child Relocation Act and in Alabama's grandparent visitation law.
The bill outlines several factors for judges to use to determine if the presumption of joint custody is appropriate in each case. Those factors include any agreement by the parents, allegations of child abuse, spouse abuse or kidnapping, the geographic proximity of the parents to each other, the moral, physical and mental fitness of each parent, the preference of the child (in cases of older children), home environments, criminal histories of the parents and several other factors.
Stutts said he sponsored the bill because it's supported by social science data that says the more children are involved with both parents, the better chance they have to be successful in life.
“Judges still have discretion to award custody to one parent. All the bill says is the judge has to put in writing why he or she is ruling that way,” Stutts said. “If we agree that parenting is a fundamental right, and children do better when both parents are involved in their lives, then we ought to have a good reason not to set it up that way.”
Stutts said the bill provides that each parent shall submit a parenting plan to the court and the court can accept or reject the plans.
“At least 10 times in the bill you can find the language 'in the best interest of the child,'” Stutts said. “It's not about mommas or daddies. All data says shared parenting is in the best interests of the child. That's the point we ought to start at and then work our way in either direction the evidence may lead. It in no way ties judges' hands,” Stutts said.
Historically, Alabama law used to favor custody to the mother as being presumed to be in the child's best interests. The legislature changed that language to state both parents should have “frequent and continuous contact” with the child but there are no specific definitions for that term.
