Grandparents are often the silent victims of divorce. In Alabama, they may have options to preserve their relationship with their grandchildren. However, these options are limited in the wake of the U.S. Supreme Court decision in Troxel v. Granville. The Troxel decision declared that “the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” It required that states evaluating grandparent visitation must apply a presumption that fit parents act in the best interests of their children. The principle that protection for the decisions parents make about the rearing of their children deserve protection from state interference deserves “special weight,” according to Troxel. What we know about the use of the term “special weight” effectively means that the presumption of parental control can be overcome only by clear and convincing evidence of some compelling governmental interest.
The current Alabama grandparent visitation statute took effect in 2016; it’s modeled on a similar statute in Arkansas that the Arkansas courts have declared to meet the Troxel requirements. The way the statute meets the Troxel requirements is by demanding a high standard of proof for a grandparent seeking visitation with a child over the objections of a parent.
The first and by far the simplest way to get visitation time with a grandchild is in cooperation with the child’s parent. It’s flexible; it’s pleasant for the child; and it’s less tense for everyone. The statute comes into effect when the parent objects to visitation and the grandparent is seeking to have a court force visitation over the objections of a reluctant parent.
Under the current statute, a grandparent wishing to force visitation has a series of hurdles to overcome. First, not every grandparent can file. One of the following must exist:
- There must be a divorce or legal separation filed involving the child’s parents, or the relationship between the parents must have been severed by death or divorce. Or
- A maternal grandparent can file for a child born out of wedlock. Or
- A paternal grandparent can file only if paternity is already legally established. Or
- An action has been filed to terminate the parental rights of a parent or parents or a court has already ordered those rights terminated, and the child has not been adopted by another parent.
The statute makes a rebuttable presumption that a fit parent’s decision to deny visitation to the person filing the petition (called the “petitioner”) is in the best interest of the child. To overcome this rebuttable presumption, the petitioner must prove two things by clear and convincing evidence:
- The petitioner has established a significant and viable relationship with the child.
- Visitation with the petitioner is in the best interest of the child.
The statute then describes what the petitioner must do to meet these two tests. To prove that a significant and viable relationship exists, the petitioner must show by clear and convincing evidence any of the following:
- The child presided with the petitioner for at least six consecutive months.
- The petitioner was the caregiver for the child on a regular basis for at least six consecutive months. (Notice here that the term used is “the caregiver,” not “a caregiver.”
- The petitioner had frequent or regular contact with the child for at least 12 consecutive months that resulted in a strong and meaningful relationship between the petitioner and the child.
The statute then adds a separate category, namely that the petitioner may show “any other facts that establish the loss of the relationship between the petitioner and the child is likely to harm the child.” It may or may not be relevant that this separate category is not stated as requiring “clear and convincing evidence.”
That’s the first test, dealing with the significant and viable relationship. To meet the requirements of the second test, namely that the visitation be in the best interest of the child, the petitioner must prove by clear and convincing evidence all of the following:
- The petitioner has the capacity to give the child love, affection, and guidance.
- The loss of an opportunity to maintain a significant and viable relationship between the petitioner and the child has caused or is reasonably likely to cause harm to the child.
- The petitioner is willing to cooperate with the parent or parents if visitation with the child is allowed.
The statute requires that a married couple or single grandparent may file for grandparent visitation only once every two years.
Once having granted grandparent visitation, the court may terminate it or modify it any time if it finds a material change in circumstances has occurred and that the change is in the child’s best interest.
The statute does not replace the grandparent provisions of the adoption statute in Chapter 26 of the Code of Alabama.