Advising Grandparents on their best Strategy to see their Grandchildren
The good news for grandparents seeking visitation with their grandchildren is that the Code of Alabama specifically allows grandparents the rights of visitation. The bad news is that if the grandparents seek visitation over the objection of the parents, the Courts have held Alabama’s statute unconstitutional. In 2010, the Alabama legislature passed an enhanced grandparent visitation act, strengthening the rights of grandparents to have visitation with their grandchildren. Conditions for grandparent visitation rights include a determination of whether a parent is deceased, the child’s parents are divorced, or the grandparent has been denied visitation. The more difficult situation arises when the parents are still married and alive. While Alabama’s new legislation confers upon grandparents the right to visitation even when the parents oppose it, recent Alabama Supreme Court precedent seems to overrule this aspect of the Alabama law. In Troxel v. Granville, The United States Supreme Court found that parents have a fundamental due process right in decisions involving their children, including whether to allow visitation with their grandparents. The Troxel decision arose out of grandparent visitation legislation in the State of Washington which the United States Supreme Court found infringed on parental rights. The Alabama Supreme Court appears to have followed the decision in Troxel in finding those portions of the Alabama law unconstitutional along the same lines. It was held that Alabama’s Grandparents Visitation Act unconstitutionally violated the parents due process rights. The court held that children’s parents have the sole authority to determine with whom their children have contact, unless the parents themselves have lost their parental rights. While this seems to prevent grandparents from obtaining visitation over the objection of two living and married parents, the Alabama statute can still be interpreted to give grandparents substantial visitation rights, when they’ve been denied, under other circumstances. Such situations include when:
- The parents are no longer married,
- One or both of the parents is deceased,
- The child was abandoned by a parent, or
- The child was born outside of marriage.
If one of the above situations exists, the family court judge will consider the following in determining whether to Order grandparent visitation:
- Whether the grandparents will help foster the relationship between the child and their parents,
- The health of the grandparents,
- The wishes of the parents, and
- The desires of the minor child.
The overriding consideration for the family court judge, just as in child custody determinations, is what is in the best interests of the child. If the grandparent can show it is in the best interests of the child to have contact with the grandparents, it is likely visitation will be ordered. If you are a grandparent and would like to explore what rights you have to visitation with your grandchild under Alabama law, please contact the Birmingham family lawyers at Boles Holmes White LLC for an evaluation of your case. Call William White today at 205-502-2000.