By Senators Stutts, Sanford, Marsh, Albritton, Coleman-Madison, Shelnutt, Bussman, Allen, Dunn and Pittman
To amend Sections 30-3-150, 30-3-151, 30-3-152, and 30-3-153 of the Code of Alabama 1975, and to add Section 30-3-158 to the Code of Alabama 1975, relating to child custody; to clarify the policy of this state regarding child custody; to provide definitions; to require a parenting plan and to authorize the court to establish a parenting plan in certain situations; to specify the contents of the parenting plan; to specify the factors the court may consider in establishing a parenting plan; and to specify remedies when a party fails to adhere to certain provisions in a parenting plan.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. This act shall be known and may be cited as the Children's Equal Access Act.
Section 2. Sections 30-3-150, 30-3-151, 30-3-152, and 30-3-153 of the Code of Alabama 1975, are amended to read as follows:§30-3-150.
"Joint Custody. It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. Joint custody does not necessarily mean equal physical custody.
§30-3-151.
"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, and the responsibility to discuss those decisions and consider the wishes and concerns of each parent and the child. 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; however, that designation does not negate the responsibility of that parent to discuss those decisions with the other parent and to consider the other parent's wishes and concerns.
"(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. Frequent and substantial contact means that the child has as much time as practical with both parents.
"(4) NONRESIDENTIAL CUSTODIAL PARENT. The parent with whom the child does not live the majority of the time and who does not have the primary authority and responsibility for the day-to-day care and decisions relating to the raising of a child or the authority to establish where a child will live, but does have the authority and responsibility for the day-to-day care and decisions related to the raising of a child when the child is in his or her physical custody and not in the physical custody of the parent with primary physical custody.
"(5) PARENTING PLAN. A plan that specifies the time which a minor child will spend with each parent.
"(5)(6) SOLE PRIMARY PHYSICAL CUSTODY. One parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court. When one parent has the authority and responsibility for the day-to-day care and decisions related to the raising of a child and to establish where a child will reside, which will be the address of the child for determinations as to school and residence.
"(7) RESTRICTED PHYSICAL CUSTODY. When a parent's physical access to a child is limited to supervised custody, no overnight custody, a suspension of physical contact, or any other restrictions on custody determined by the court to be in the best interest of the child.
"(4)(8) SOLE LEGAL CUSTODY. One When 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.
§30-3-152.
"(a) The court shall in every case consider joint custody but may award any form of custody which is determined to be There shall be a rebuttable presumption that joint custody is in the best interest of the child. This rebuttable presumption may be overcome only by clear and convincing evidence, set forth in written findings of fact, that joint custody is not in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical other forms of custody arrangements and all of the following factors below. The court may weigh various factors differently based on the facts presented and the best interests of the child:
"(1) The agreement or lack of agreement of the parents on joint custody.
"(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
"(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
"(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
"(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.
"(b) The court may order a form of joint custody without the consent of both parents, when it is in the best interest of the child.
"(c) If both parents request joint custody, the presumption is that joint custody is in the best interest of the child. Joint custody shall be granted in the final order of the court unless the court makes specific findings as to why joint custody is not granted.
"(d) If joint custody is not awarded by the court, all of the following factors shall be considered by the court when determining which other custody arrangement is in the best interest of the child. The court may weigh various factors differently based on the facts presented and the best interests of the child:
"(1) The preferences of the parents.
"(2) Moral, mental, and physical fitness of each parent.
"(3) The capacity of each parent to provide a loving relationship and the needs of each child, including the child's emotional, social, moral, material, and educational needs.
"(4) The history of cooperation between the parents, including the past and present history and the capacity of each parent to facilitate or encourage a continuing parent-child relationship with both parents.
"(5) Each parent's home environment.
"(6) Each parent's criminal history or evidence of violence, sexual, mental, or physical abuse.
"(7) Evidence of substance abuse by either parent.
"(8) The child's age and any special needs.
"(9) Characteristics of those seeking custody, including age, character, stability, and mental and physical health.
"(10) The report and recommendation of any expert witnesses or other independent investigator.
"(11) Military considerations in accordance with state and federal law.
"(12) The child's current adjustment to or involvement with his or her community.
"(13) The relationship between each parent and the child.
"(14) The preference of the child if the child is of sufficient age and maturity.
"(15) The relationship between the child, the child's peers, siblings, or other relatives.
"(16) Any other relevant factors.
§30-3-153.
"(a) In order to implement joint custody, the The court shall require each parent to submit, as part of their agreement separately or together, provisions covering matters relevant to the care and custody of the child, including, but not limited to, all of the following:
"(1) The care and education of the child. How the parents will share and be responsible for the daily tasks with the upbringing of the child.
"(2) The medical and dental care of the child. A parenting plan that specifies the time the minor child will spend with each parent.
"(3) Holidays and vacations. A designation of who is responsible for any and all forms of health care, school-related matters, including the address to be used for school residential determination and registration, and other activities.
"(4) Child support. Transportation arrangements for the child, including who bears the cost for transporting the child.
"(5) Other necessary factors that affect the physical or emotional health and well-being of the child. The methods and technologies that the parents will use to communicate with the child and each other.
"(6) Designating the parent possessing primary authority and responsibility regarding involvement of the minor child in academic, religious, civic, cultural, athletic, and other activities, and in medical and dental care if the parents are unable to agree on these decisions. The exercise of this primary authority is not intended to negate the responsibility of the parties to notify and communicate with each other as provided in this article. Any other matter specifically delineated by the court.
"(7) The division of any expenses in addition to child support as provided by Rule 32 of the Rules of Judicial Administration.
"(8) A designation of the parent possessing primary authority and responsibility regarding involvement of the minor child in academic, religious, civic, cultural, athletic, and other activities, and in medical, dental, vision, mental health care and the like if the parents are unable to agree on these decisions.
"(b) If the parties are unable to reach an agreement as to the provisions in subsection (a), the court shall set the plan.
"(c) If both parents submit the same parenting plan, the presumption is that the parenting plan jointly submitted by the parents is in the best interest of the child. The parenting plan jointly submitted by both parents shall be granted in the final order of the court unless the court makes specific findings as to why the parenting plan jointly submitted by the parties is not granted."
Section 3. Section 30-3-158 is added to the Code of Alabama 1975, to read as follows:
§30-3-158.
(a) When a parent refuses to adhere to the time sharing schedule in the parenting plan ordered by the court without proper cause, the court may take any of the following actions:
(1) After calculating the amount of time sharing improperly denied, award the parent denied time a sufficient amount of extra time sharing to compensate for the time sharing missed, and such time sharing shall be ordered as expeditiously as possible in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the parent deprived of time sharing. In ordering any makeup time sharing, the court shall schedule the time sharing in a manner that is consistent with the best interests of the child or children and that is convenient for the nonoffending parent and at the expense of the noncompliant parent.
(2) Order the parent who did not provide time sharing or did not with reasonable notice properly exercise time sharing under the time sharing schedule to pay reasonable court costs and attorney's fees incurred by the nonoffending parent to enforce the time sharing schedule.
(3) Order the parent who did not provide time sharing or did not with reasonable notice properly exercise time sharing under the time sharing schedule to attend a parenting course approved by the court. The parenting course, among other things, shall educate the parent about the benefits of a child's relationships with both parents.
(4) Order the parent who did not provide time sharing or did not with reasonable notice properly exercise time sharing under the time sharing schedule to pay the actual cost incurred by the other parent because of the failure to provide time sharing or the failure to properly exercise time sharing as provided by the court order.
(5) Impose any other reasonable remedies as a result of noncompliance.
(b) These remedies are in addition to existing remedies, including, but not limited to, contempt.
Section 4. (a) A court of competent jurisdiction shall enforce all parenting time orders, custody orders, and child support orders giving equal importance to each.
(b) As a matter of public policy, it is the intent of the Legislature that this amendatory act be implemented in a manner that recognizes the importance of family and the fundamental rights of parents and children.
(c) This act shall apply to parenting time orders, custody orders, and child support orders issued on or after January 1, 2019, and the amendatory provisions of this act may not be construed to assert a material change of circumstances for purposes of modifying an order in place before January 1, 2019.
Section 5. This act shall become effective January 1, 2019, following its passage and approval by the Governor, or its otherwise becoming law.