Alabama is the scene of one of the most recent struggles over grandparents' rights. In 2010 the legislature passed HB 348, which strengthened the statutes that have 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 result is that laws about grandparent visitation remain on the books in Alabama, but most family lawyers are not interested in taking grandparent visitation cases.
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 they had a financial dispute with the parents. 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 remain on the books in Alabama, although they are of little use to grandparents. Visitation 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.
See Alabama statutes, Section 30-3-4.1.
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