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Grandparent Visitation Rights

Apr 14

I am frequently called by concerned grandparents who are not able to see their grandchildren wanting to know if they have any legal rights in the situation. In Alabama, grandparent visitation rights have come a long way over the past few years and, yes, grandparents potentially have the right to court ordered visitation with their grandchildren. However, the law allowing this visitation is very specific and is followed very closely by the court, meaning that a grandparent must meet every requirement in order to take advantage of the law.

Under Alabama’s Grandparent Visitation Rights statute, found at §30-3-4.1 in the Alabama Code, the first hurdle a grandparent must overcome is meeting one of the three statutory definitions of a grandparent.  This is one of the most important requirements to fulfill under grandparent visitation law because if you do not fit one of these definitions exactly, you can’t bring your case.  The definitions are a little confusing and are better defined by example.

Definition 1 — Mary and John have a child named Steve, Steve marries Wanda and they have a minor son named Billy. Billy is a minor child and for whatever reason, Steve will not let his parents visit Billy. Under the statute, Mary and John are each grandparents because they are the “parent of a parent of a minor child.”

Definition 2 — Let’s say Steve is dead, and Wanda, Billy’s mother, will not let Mary and John visit Billy. Mary and John are still each considered grandparents because they are the “parent of a minor child’s parent who has died.”

Definition 3 – Now, Steve and has lost his parental rights because Wanda’s new husband has adopted Billy.  Even though Steve has lost his parental rights and Mary and John are not “legally” related to Billy anymore, Mary and John are still defined as grandparents because they are “the parent of a child’s parent whose parental rights have been terminated through a stepparent or relative adoption.” Note that this situation also applies whenever any relative adopts Billy.

Again, if you do not fall exactly under one of these definitions, you may not be able to bring your case. This of course excludes any other related family member like aunts, uncles, cousins, etc., but also excludes great-grandparents.   

Next week, in part II of this column, we will go over what the court looks at when deciding on whether to grant a grandparent visitation rights over a parent’s objection.

This column is intended for general information purposes only. It is not intended, nor should it be construed as personal legal advice. The answers to most legal problems rely on the specific facts of your situation; therefore, it is very important that you personally see a lawyer when these situations arise.

Last week we discussed the definition of a grandparent under Alabama’s grandparent visitation rights statute. This week, we will review what the court requires in order to actually grant a grandparent visitation of a grandchild over the parent’s objection.

If a person qualifies under one of the definitions of a “grandparent” then they may file a petition for visitation with the court, or may join an action already in progress where the custody of the child is at question (for example, an ongoing divorce, juvenile proceeding, or in some cases a stepparent or relative adoption proceeding). Under the law, a grandparent not only must first prove that visitation is in the “best interest of the child” as defined below, but also must show that at least one of the following conditions exist:

   (1) One or both parents of the child are deceased.

   (2) The marriage of the parents of the child has been dissolved.

   (3) A parent of the child has abandoned the minor.

   (4) The child was born out of wedlock.

   (5) When the child is living with both biological parents, who are still married to each other, whether or not there is a broken relationship between either or both parents of the minor, the grandparent and either or both parents have used their parental authority to prohibit a relationship between the child and the grandparent.

In determining the best interest of the child, the court usually considers the following:

   (1) The willingness of the grandparent or grandparents to encourage a close relationship between the child and the parent or parents.

   (2) The preference of the child, if the child is determined to be of sufficient maturity to express a preference.

   (3) The mental and physical health of the child.

   (4) The mental and physical health of the grandparent or grandparents.

   (5) Evidence of domestic violence inflicted by one parent upon the other parent or the child. If the court determines that evidence of domestic violence exists, visitation provisions shall be made in a manner protecting the child or children, parents, or grandparents from further abuse; and

   (6) Any other relevant factors in the particular circumstances, including the wishes of any parent who is living.

There is one major exception to grandparent visitation rights. Going back to our example from last week — Mary and John have a child named Steve, who marries Wanda, Steve and Wanda have a child named Billy. The law states that a even if Mary and John are grandparents under one of the above definitions, they cannot be granted visitation with Billy if Steve has either given up legal custody of Billy voluntarily or by court order or has abandoned the child financially unless Mary and John have (1) already established a relationship with Billy and (2) the court finds that visitation is in Billy’s best interests of the child.       

As you can see, grandparent visitation rights cases can be very complicated, and can’t be explained fully in these columns. If you find yourself in one of the above situations, I highly recommend you see a lawyer to discuss your options.