Child custody cases are always tough in some ways. If one parent tries to modify a custody judgment obtain primary custody of the child, the parent who already has custody is probably terrified of losing their child. Sometimes there are other circumstances that complicate things even further. If one of the parents is charged with a crime, that is a very persuasive factor that the court must consider.

Alabama law requires that a parent who is seeking to modify a custody judgment to take custody of the child must show three elements. First, they must show that they are a “fit custodian,” meaning that they should be in a good family situation. Second, they must show that “material changes” have occurred that affect the child’s welfare. Essentially, they must show that something happened that negatively affects the child staying with the parent that has custody. Third, they must show that the benefit of changing custody outweighs the disruption in the child’s life from having to move to a new home.

In the recent case of Weaver v. Jefferson, from Etowah County, Alabama, the Alabama Court of Civil Appeals applied this law to an interesting family situation. The father had primary custody of the child and the mother had visitation with the child one weekend per month. However, the father was arrested on felony charges and incarcerated in Georgia. The mother petitioned for temporary custody, which the trial court granted, and then asked for the custody agreement to be modified permanently to give her custody. The trial court said that she met the requirements of the law and granted her permanent custody.

The father appealed the decision. The appeals court first looked at the mother’s situation. She testified that she had a stable living situation, that the child would have her own bedroom, and that the child would attend preschool and daycare. She showed that the child was very attached to her stepfather, the mother’s husband.

The appeals court then looked at the father’s situation. The mother had to show that there was a “material change” that made the child worse off with the father. However, the father testified that the child would be able to live in the same house with his wife, her half-sibling and step-sibling, and the child’s grandparents. Also, she would be able to continue going to the same preschool with the same teacher. Further, the father would still be working for the same employer.

The mother did not present any evidence about the father’s legal issues. However, the father showed that there was very little chance that he would go to jail over the pending charges. As a result, the appeals court decided that there was no material change in the father’s situation and that even if there was, the negatives of uprooting the child outweighed any positives.

Just because you are charged with a felony does not mean that you will lose your child. Even if the court awards temporary custody to the other parent, there is still a high bar for the other parent to climb to receive permanent custody. If you are in a custody battle, it is important to consult an attorney with experience in family law.