The Alabama state legislature has passed a new grandparent visitation bill to replace the preceding law, which was declared unconstitutional in 2011. The bill was signed by Governor Robert Bentley on May 11, 2016.
The passage of the bill was a bittersweet victory for grandparents, as the bill toughens requirements for grandparents to win visitation. Tougher language was considered necessary to avoid another finding of unconstitutionality.
Some observers have noted that the new Alabama bill draws upon virtually every phrase which has been used in other states to avert constitutional challenges.
At least one suit has been filed since the new law was passed, but the judge sealed the decision to protect the juveniles in the case. If the case is appealed, the decision would likely be revealed by the appellate court. The decisions of appellate courts set precedents and become part of case law and thus are unlikely to remain sealed.
When the Grandparent Can Sue for Visitation
Under the new bill, a biological or adoptive grandparent can sue for visitation with a grandchild if the parents' relationship has been severed by death, divorce or legal separation, or if a petition for divorce or legal separation has been filed. A grandparent can also petition to see a grandchild born out of wedlock, but if it is a paternal grandparent who is petitioning, the grandchild's paternity must have been legally recognized.
If a parent's rights have been terminated, the grandparent can still petition to see the grandchild as long as the child has not been adopted. If the child has been adopted by a stepparent or relative, the grandparent's right to visitation is not terminated.
What the Grandparent Must Prove
The law states that the decision of the parents to deny or reduce visitation is presumed correct.
In order to rebut this presumption, the grandparents must prove that they have a "significant and viable" relationship with the child and that continuing the relationship is in the child's best interest.
A qualifying relationship is considered to exist if a grandchild lived with the grandparent without a parent for a period of at least six months. A grandparent providing child care for a grandchild for a period of at least six months is also considered proof of a "significant and viable" relationship.
The third way that a grandparent can demonstrate the required relationship is by having "frequent or regular" contact with the child for at least 12 months, resulting in a "strong and meaningful" relationship. In all three cases, the relationship must have occurred within three years of the filing of the petition for visitation.
The grandparent can provide other facts that show that the loss of the grandparent-grandchild relationship will harm the child. This requirement is called the harm standard, and it is a difficult standard to meet.
In addition, the grandparent must show that visitation is in the best interest of the child, which can be done by showing that the grandparent has the ability to give the child "love, affection, and guidance" and by demonstrating a willingness to work with the parent or parents.
Again, the grandparent must show that the loss of a relationship with the grandparent "has caused or is reasonably likely to cause" harm to the child.
Everything that a grandparent is required to prove must be proven by "clear and convincing evidence."
The flaw, of course, in this type of statute is that a grandparent may have been denied contact with a grandchild and thus have had no opportunity to develop a relationship with the child. In such cases, a grandparent is simply out of luck.
Judicial History of Previous Law
In 2010 the legislature passed HB 348, which strengthened the grandparent visitation statutes that had been in place in Alabama since 2003. The next year the Alabama Supreme Court declared those statutes unconstitutional, with a nod to Troxel v. Granville, the controversial decision of the U.S. Supreme Court.
The case that occasioned the finding of unconstitutionality was E.R.G. v. E.H.G. In this case, the paternal grandparents had enjoyed a close relationship with their grandchildren until a financial dispute between parents and grandparents broke out. The parents subsequently cut off contact. The grandparents were awarded visitation by a trial court, but the decision was overturned on appeal because the grandparents had not shown that lack of contact would cause harm to the grandchildren. The case then went to the Alabama Supreme Court, which agreed with the decision of the appeals court, but on a different basis.
The lead opinion of the Alabama Supreme Court found that "a prior and independent finding of parental unfitness" is necessary before the state can intervene in family matters. Since the Grandparent Visitation Act (GVA) did not require such a finding, "the state’s basis for intervention through the judicial system evaporates" and the GVA is unconstitutional. (It is worth noting that the case occasioned a variety of opinions. Three other judges wrote concurring opinions; one "reluctantly" concurred; and two wrote dissenting opinions. The combined opinions are 134 pages long.)
The Alabama saga was not yet finished, though. The case was appealed to the U.S. Supreme Court, which in 2012 declined to make a ruling, letting the decision of the Alabama Supreme Court stand. All the details of E.R.G. v. E.H.G. are available in the Petition for Writ of Certiorari filed with the U.S. Supreme Court.
The following is a summary of the statutes that were declared unconstitutional.
Grandparents' rights in Alabama depend upon the family situation of the grandchild and a determination of the child's best interest. In order for the grandparents to have standing to ask for visitation, one of the following situations must exist:
- The parents are divorced.
- A parent or parent is deceased.
- The child was born out of wedlock.
- The child was abandoned by a parent.
- The grandparents have been denied visitation.
Factors which the court may consider when determining the best interest of the child include the following:
- The willingness of the grandparents to promote the parent-child relationship
- The preference of the child
- The mental and physical health of the child
- The mental and physical health of the grandparents
- Any evidence of domestic violence in the home
- The wishes of the parents.
Adoption terminates grandparents visitation rights.
- More Information: Before You Sue for Visitation Rights