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Changing Grandparent’s Visitation Rights

Jan 04

Several months ago, I wrote an series of articles on “Grandparent’s Visitation Laws.” To recap, the Alabama legislature has, in the past, attempted to create laws which allow grandparents the right to file a petition requesting court-ordered visitation of their grandchildren in certain circumstances.  Although the legislature has always seemed to be in favor of grandparent’s visitation laws, the Alabama Supreme Court has not. In fact, in the past, the Alabama Supreme Court has declared Alabama’s Grandparent’s visitation rights law unconstitutional, and therefore refused to uphold rulings where courts have granted grandparents visitation.  The latest few versions of the law attempted to fix the Supreme Court’s constitutional concerns, and was actually in force for some time.  A recent case, however, has thrown question on the constitutionality of Grandparents visitation rights once again.   

On June 10, 2011, the Alabama Supreme Court issued a ruling in the case Ex parte E.R.G. v. D.W.G. declaring Alabama’s Grandparent’s rights laws unconstitutional and, therefore, unenforceable.  According to the Alabama Supreme Court, the right of parents to direct the upbringing of their children has long been recognized as fundamental by the United States Supreme Court and, therefore, as a right protected by the United States Constitution.   The Court noted that the United States Constitution provides heightened protection against government interference with certain fundamental rights and liberty interests like the rights of parents to control the care and custody of their children. This Constitutional liberty includes the right of parents to establish a home and bring up children and to control all aspects of their life, including visitation with grandparents.

The court explained that the State of Alabama’s interest in matters of visitation and custody is limited to overruling the decisions of unfit parents. It is only after the State has established a parent unfit that the court may assume a role in deciding non-parental custody and visitation rights.  The court stressed again that the core principal of parental rights is the right of a parent, not the State or courts, to make decisions about the upbringing of his or her child.

As the court explained, grandparents have no “inherent” rights to visitation with their grandchildren.  Their rights, the court stated, exist only as created by the Alabama Grandparent Visitation Act (Ala. Code § 30-3-4.1). In order for a grandparent visitation law to be constitutional, it must recognize the fundamental presumption in favor of the rights of the parents. The Alabama Grandparent Visitation Act, the court noted, makes no mention of the fundamental right of parents. Instead, it instructs the court to determine if visitation by the grandparent is in the “best interests” of the child. According to the law, the wishes of any parent who is living are merely among a long list of factors the court should consider. The court finally stated that, because a fit parent’s decision is protected by the U.S. Constitution, the wishes of the parent are always superior, not just a factor to be given consideration, making Alabama Grandparents Visitation Law unconstitutional.

It would seem, then, that according the Alabama Supreme Court, grandparents do not currently have any rights to court-ordered visitation of their grandchildren.  If history repeats itself, however, the legislature will amend the current law in an attempt to make Grandparent Visitation Laws constitutional.