Legal Question in Family Law in Alabama

Custody-Incarceration-Common Law (or not)

Friends of mine have been convicted in federal court. Mom got 48 months and is currently incarcerated;Dad not yet sentenced. They have a 6 month old child and lived together for a year and half before her birth. Never held themselves out as married, nor ever intended to marry BUT they MAY have claimed to be common-law married to avoid testifying against each other in court (I know this was considered, but I am NOT sure if they actually made the claim.) Paternity has not been established in any court. Dad currently has physical custody of the child, but no formal paperwork of any kind has been executed concerning the child's custody. Dad is trying to get Mom to sign papers to give his folks temp custody when he is incarcerated; Mom wants her folks to have custody. She would like this to happen before Dad is sentenced as he does not bring the child to see her, not to mention that she may be in real danger due to Dad ''assisting in the investigation of others'' as part of his plea. I say regardless of physical custody, Dad has no rights, but if they did claim to be common-law married, he may. Her resources are nil, as are her family's. I'm a Florida family law paralegal, but with zero experience in Alabama law. How can I help Mom?


Asked on 5/26/08, 6:12 am

1 Answer from Attorneys
Mari Morrison Mari Morrison

Re: Custody-Incarceration-Common Law (or not)

mom's parents should go to family court and file a petition alleging dependency and put these details in there. Regardless of anything, the child is dependent and in need of a legal custodian. They have standing as the legal grandparents. The other parent does not have standing as a legal parent but does as having a substantitial relationship with the child. His parents may not have that relationship. DHR will become involved and perform home evaluations, etc.

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Answered on 5/26/08, 10:00 am


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