Grandparent Visitation – Harm Not Required

The Alabama Court of Civil Appeals says there’s no requirement that grandparents who want to visit their grandchildren must show harm to the grandchildren if the visitation is denied. Ruling in Dodd v Burleson, Case No. 2040003 (Ala. Civ. App. December 15, 2005), the appeals court quoted liberally and approvingly from the Kentucky Court of Appeals.

The case pitted the father of the children against the maternal grandparents, after the death of the mother. The grandparents had cared for the children extensively during the mother’s long illness and death. However, the grandparents heartily disapproved of the father’s new love interest and were not bashful about voicing that disapproval to the children. The trial court heard evidence that the father had moved the children 300 miles away from where both the children and the grandparents had lived happily together and that this move was motivated by the father’s desire to cut off the relationship between the grandparents and the grandchildren.

The trial court specifically found that visitation with the grandparents would be in the children’s best interests but apparently did not make a finding that the children would be harmed if the visitation did not occur. The trial court ordered the father or his designee to transport the children to the city hall in the grandparents’ home town (a round trip of about 600 miles) for 24 hours every two weeks, plus six weeks in the summer, plus visits for spring break, Easter, Mothers’ Day, Thanksgiving, and New Year. The trial court also ordered the father to pay an attorney fee for the grandparents and for the children’s guardian ad litem. The father appealed.

The father challenged the constitutionality of the grandparent visitation statute, Ala. Code § 30-3-4.1. The father failed to serve the attorney general with notice of the challenge as required by Ala. Code § 6-6-227, however, so the constitutionality of the statute was not before the appeals court. The principle before the appeals court was “whether § 30-3-4.1, as amended, should be held to require a showing of harm as a prerequisite for a judgment awarding grandparental visitation.” The appeals court said no.

The appeals court acknowledged that some of its prior decisions (R.S.C. v. J.B.C., 812 So. 2d 361 (Ala. Civ. App. 2001) and L.B.S. v. L.M.S., 826 So. 2d 178 (Ala. Civ. App. 2002) had discussed and imposed a requirement that harm be shown, but the appeals court said that this was a reaction to the U.S. Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) and in the absence of any guidance from the legislature.

Noting that the legislature had intervened in the meantime to amend the statute (and had not imposed a harm standard), the appeals court said:
“We can interpret the 2003 amendments to § 30-3-4.1 only as an endorsement by the Legislature of the judiciary’s use of the case-by-case approach taken by the main opinion in L.B.S. and as a simultaneous rejection of the proposition that the “harm” standard should be the touchstone by which the propriety of a judgment awarding grandparental visitation should be judged.”

The appeals court quoted extensively and adopted the language of the Kentucky Court of Appeals, which called the harm standard “unworkable” and a misinterpretation of the Troxel case. Here is the standard for grandparent visitation in the words of the Kentucky court and adopted in Alabama:

We now hold that the appropriate test under [the applicable grandparental-visitation statute] is that the courts must consider a broad array of factors in determining whether the visitation is in the child’s best interest, including but not limited to: the nature and stability of the relationship between the child and the grandparent seeking visitation; the amount of time spent together; the potential detriments and benefits to the child from granting visitation; the effect granting visitation would have on the child’s relationship with the parents; the physical and emotional health of all the adults involved, parents and grandparents alike; the stability of the child’s living and schooling arrangements; the wishes and preferences of the child. The grandparent seeking visitation must prove, by clear and convincing evidence, that the requested visitation is in the best interest of the child.

The appeals court did hand the father a victory. It found that the extensive visitation in the trial court’s order required so much traveling by the children that it might keep them from forming healthy relationships in their new home.

In its zeal to reconstitute the previous relationship between the grandparents and the minor children, the trial court has, we feel, overlooked the overarching goal that § 30-3-4.1 was intended to achieve: furtherance of children’s best interests through reasonable visitation with grandparents. As to the specific amount and terms of visitation awarded by the trial court, then, we must reverse the trial court’s judgment; we remand for the trial court, being mindful of the need of the children to be a part of their new home, to craft a new judgment permitting more limited visitation with the grandparents.