Grandparent Visitation – Pre-Amendment

In a case of perhaps only historical interest, the Alabama Court of Civil Appeals has reiterated its finding that grandparents seeking visitation under the OLD grandparent visitation statute must demonstrate that the child would suffer substantial harm if deprived of time with the grandparents. Ruling in the case of C.D. P. v. D.P. and D.S.P., Case No. 2040217 (Ala. Civ. App. October 28, 2005), the Appeals Court reversed the trial court’s order of visitation for grandparents.

Strangely, the Appeals Court never states the precise action of the trial court, so we are left to infer that action from the reasoning of the opinion. After a divorce trial, the trial court apparently ordered that the child, who lived with her mother, should spend time with the paternal grandparents. (Dad was in prison).

The Appeals Court stated that the September 1, 2003 amendment to Alabama’s grandparent visitation statute at Ala. Code § 30-3-4.1 did not apply in this case, because the amendment occurred after the grandparents intervened in the divorce case. Consequently, the Appeals Court confined its reasoning to the statute as it existed before September 1, 2003 (and subject to the constitutional challenge stated in Troxel v. Granville, 530 U.S. 57 (2000)). In so doing, the Court of Appeals reiterated the requirement that the grandparents demonstrate that the child, if deprived of time with them, would suffer substantial harm.

The Appeals Court referenced statements of the guardian ad litem indicating that the child was “lively, bubbly, and happy” and that it appeared the mother was caring well for her. Finding no evidence of substantial harm, the Appeals Court reversed the trial court.

In his dissent, Judge Crawley argued that the pre-amendment grandparent visitation was uncontitutional per se. Therefore, he concurred in the result (reversing the trial court’s award of grandparent visitation).

One comment

  1. Jeremy says:

    Mr. Borden, Do the Alabama courts require the grandparents to that the child would suffer “HARM” or not? I thought that the holding in Dodd v. Burleson 932 So.2d 912 which holds “Where we differ from the holing in Scott, is in the method by which grandparents may challenge the decision. Scott allows only one avenue for grandparents to callegne the decision, requiring them to show by clear and convincing evidence that depriving the child of visitation with the grandparent would HARM the child”….WE BELIEVE THIS TEST TO BE TOO NARROW.” “WE NOW HOLD THAT THE APPROPRIATE TEST UNDER [the grandparental-visitation statute] is that the courts must consider a broad array of factors in determing whether the visitation is in the child’s best interest……” So, will you please share your vast knowledge and just tell me “YES” or “NO” as to the question. “Does the HARM element in TROXEL still apply?” Thanks

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