Baxley Maniscalco Attorneys At Law
The routine love and affection of a grandparent can be highly beneficial for a child's development.
We understand how important your grandchildren are to you and how devastating it can be when that relationship is severed.
Fortunately, Alabama law provides a vehicle for grandparents to petition for court-ordered visitation; unfortunately, there are limited situations where the Court will award the visitation.
The History of Alabama's Law
The current law on grandparent visitation has been modified multiple times over the past twenty years due to constitutional issues.
This is because, under the United States Constitution, the Supreme Court has held that parents have a fundamental right to raise their children in the way that they deem fit.
This is a right the Supreme Court has called "one of the oldest fundamental liberty interests."
Several states throughout the country had various grandparent visitation laws on the books at the end of the 1990s. One mother challenged her state's law, and in 2000, the Supreme Court issued a decision in the landmark case Troxel v. Granville, which held that the grandparent visitation law violated the mother's fundamental right to raise her children and make decisions for them. As such, the statute was ruled unconstitutional and void.
Shortly thereafter, a set of Alabama parents appealed a judge's decision in a grandparent visitation case, and the Alabama Supreme Court held that Alabama's grandparent visitation statute was unconstitutional due to the Troxel decision and in need of some work before it would be approved.
Over time the statute was changed many times to balance the fundamental rights parents have to make decisions with their children against the harm that may come to a child from losing a long-enduring relationship with a grandparent. This resulted in the statute we use in Alabama today. It is highly specific, but it is certainly possible for grandparents to receive court-ordered visitation under the right circumstances.
Legal Standard for Visitation
Section 30-3-4.2 of the Alabama Code lays out the criterion that a Court must use when determining whether to award a grandparent visitation.
First, one of the following situations must be present for the court to consider your petition for grandparent visitation:
- The child's parents have filed for divorce or legal separation.
- The child's parents have already divorced.
- The child's parents' marital relationship was severed by the death of one of the parents.
- The child was born out of wedlock and the petitioner is a maternal grandparent of the child.
- The child was born out of wedlock, the petitioner is a paternal grandparent of the child, and paternity has been legally established.
- Someone has filed an action to terminate the parental rights of a parent or parents, or the parental rights of a parent have been terminated by court order provided; this route is limited if another person adopts the child, though.
Second, you must prove that you have a strong relationship with the child by any of the following:
- Your grandchild lived with you for six consecutive months out of the past three years; the parent's absence is not required.
- You were a regular caregiver of your grandchild for at least six consecutive months during the last three years.
- You had regular and frequent contact with the grandchild for 12 consecutive months in the last three years, which resulted in a meaningful relationship.
Finally, you must show that visitation with you is in your grandchild's best interest by demonstrating all of these things:
- You have the ability to provide your grandchild with love, affection, and guidance.
- The child will likely be harmed without you having an opportunity to maintain a meaningful relationship.
- You are willing to cooperate with the parents as needed to effectuate visitation.
Other important things to keep in mind regarding grandparent visitation in Alabama include:
- The person seeking visitation must be an actual grandparent. Legally, the grandparent must be the parent of a parent, and it does not matter whether that relationship is biological or adoptive.
- The grandparent must show clear and convincing evidence that the child will suffer actual physical, emotional, or mental harm without visitation.
- There is one line in the sand that the Court cannot cross: If the parents are married, and both parents have refused visitation, you will be unsuccessful in requesting grandparent visitation. This is due to the fundamental constitutional right of parents to make decisions for their children mentioned above.
Why Hire a Lawyer?
In our practice, we commonly assist grandparents in interpleading into divorce cases to preserve visitation between grandparents and grandchildren.
To be granted court-ordered grandparent visitation, you must be prepared to properly present a volume of evidence showing the grandparent-grandchild relationship as well as the harm that may result from the relationship being severed. Our grandparent visitation attorneys are well-versed in the Rules of Evidence and ensure all documents are properly entered into evidence. We also know exactly what our judges want to grant grandparent visitation.
If you have questions about your particular situation or need help seeking visitation, don't hesitate to drop us a note or call/text us at 256-770-7232.