Category Archives: Makin’ it Legal

FAQ: Is visitation up to the child?

Is visitation up to the child?

Often I am asked “Is visitation up the child?” This question often comes up when the custodial parent states or the Non-custodial parent is told, “But the child doesn’t want to go on visitation.”

The short answer is:  NO.  Call me to discuss your particular situation because there are substantial nuances to every family problem.

The most recent case in which this was discussed was Morgan v. Morgan, a 2014 case.  The primary consideration in setting visitation rights is the best interest of the child. Not what the child wants.  What follows is the “Black Letter” law from the Alabama Courts.

What follows is what the Court wrote-

This court has held that “‘[t]he natural and proper relationship of a parent and child should be nurtured, encouraged and protected by the court after the breakdown of a marriage. No unreasonable impediment should be raised…. “‘… The responsibility for the cultivation of that relationship should rightfully be upon the father, and the mother, not upon the child. To so place it is to probably destroy it, not protect it.’ “Moore v. Moore, 57 Ala.App. 735, 331 So.2d 742, 744 (Ala. Civ. App. 1976); see also Parker v. Parker, 269 Ala. 299, 303, 112 So.2d 467, 471 (1959) (reversing a judgment placing visitation at the discretion of the child and stating that ‘a decision as to what is best for the child’ should be made by the trial court rather than the child).” H.H.J. v. K.T.J., 114 So.3d 36, 44 (Ala. Civ. App. 2012).

In Parker v. Parker, 269 Ala. 299, 303, 112 So.2d 467, 471 (1959), our supreme court reversed the trial court’s judgment when it had failed in its duty to determine the best interest of the child. “It seems apparent that the change in the decree is grounded essentially on the desires of the child, a boy eleven years old. Moreover, the decree, in giving the child the sole right to determine, for at least half of each month, which parent should have his custody is geared to his variable desires in the future. There seems to be little need to catalogue the reasons why such a provision is inappropriate. It is sufficient to say that it places on this young child the exclusive responsibility of determining, from time to time, which parent should have custody. Thus, a decision as to what is best for the child is made by the child himself and not by the court.” Parker v. Parker, 269 Ala. at 303, 112 So.2d at 471.

Also instructive to this court are our decisions routinely reversing judgments when the control of visitation has been vested entirely in one person or one couple. See, e.g., Bearden v. Murphy, 120 So.3d 1096, 1098 (Ala. Civ. App. 2013) (“[L]eaving visitation to the sole discretion of the custodial parent … require[s] reversal.”); and Bryant v. Bryant, 739 So.2d at 56-57 (reversing a visitation provision that allowed the mother to determine the father’s visitation).

Although we are not unsympathetic to the youngest son’s feelings, we hold that the trial court erred in vesting total discretion regarding a noncustodial parent’s visitation in one person, and, in this case, that person is a child who cannot be expected to comprehend the legal, social, financial, or emotional implications of maintaining or of severing his relationship with his father. See Moore v. Moore, 57 Ala.App. 735, 737, 331 So.2d 742, 744 (Civ. 1976) (reversing an award allowing a father visitation at the discretion of the children on the basis that the award was “manifestly unjust” under the facts). Therefore, we reverse the trial court’s judgment insofar as it relates to visitation, and we remand the case with instructions for the trial court to enter a visitation order that fashions a visitation schedule that facilitates a relationship between the husband and the youngest son and that serves the best interests of the youngest son. See DuBois v. DuBois, 714 So.2d 308, 309 (Ala. Civ. App. 1998) (“The primary consideration in setting visitation rights is the best interest of the child.”).

Morgan v. Morgan, 2120101, 2120390



Alabama Out of State Visitation

Alabama Out-Of-State Visitation

Out of state visitation can be a problem. In Alabama when a noncustodial parent lives outside the state the domestic court judge can provide for out-of-state visitation with the minor children. What does this mean? This usually varies from court to court and judge to judge. Further, this can vary within each County and in some cases with the judges in that County.

Most judges however provide what is called “Standard Out-Of-State Visitation” as a guide to the parties. Continue reading Alabama Out of State Visitation

About Makin’ it Legal ——The Legal Blog

Makin’ it Legal


Makin’ it Legal is the name of my Blog. From time to time I will make a post in my blog to discuss things that may interest you. They will cover a wide range of topics not only of a legal nature but things that are nonlegal.

I will attempt to educate my clients as to the nature of the legal system and how they can win their legal matter. I hope to have it be stimulating. Please respond with questions so that we can maintain a dialogue.

I’ve always believed that you can be the best lawyer in the world, but if your client is not on the same page, they can take the stand all is lost. Many of my clients have heard me say that I want them “inside the bubble.” By that, what I mean, is that they should understand what the case is about; what we are attempting to accomplish and how we are going to do it. From time to time this blog may seem incomplete and focused on only one area. But please do come back or suggest topics that you would like me to address.

Another goal is to serve as a training area for my clients. Only time will tell if it is effective.

Henry Lagman