Grandparent visitation rights are governed by Alabama Code § 30-3-4.2 (2016). Essentially, the law protects the primacy of a parent’s right to deny visitation with a grandchild, but allows a grandparent to challenge that denial under some circumstances.The previous version of the law was struck down by the Alabama Supreme Court as being unconstitutional. The revised law went into effect in 2016.
In enacting the statute in 2016, the Alabama legislature recognized that a fit parent’s decisions are entitled to special weight due to a parent’s fundamental right to make decisions concerning the rearing of his or her child. Nonetheless, the Legislature also recognized the importance of the extended family. The Legislature passed the Grandparent Visitation Act with the intent to balance the constitutional rights of parents and children by imposing an enhanced standard of review and consideration of the harm to a child caused by the parent’s limitation or termination of a prior relationship of a child to his or her grandparent.
Here are some common FAQs regarding grandparent rights in Alabama.
Under What Circumstances May a Grandparent File Suit to Gain Visitation Rights?
- Grandparents may file an original action lawsuit or may intervene in an existing divorce or custody or other domestic relations case and ask the court for reasonable visitation rights with respect to the grandchild if any of the following circumstances exist:
- The parents are divorcing
- The parents have died
- The grandchild is born out of wedlock — if the grandparents are on the father’s side, paternity must be legally established OR
- Parental rights have been terminated or parental rights of a parent or parents are being sought to be terminated by the Alabama DHR Child Protective Services
Under What Conditions Will the Grandparent Succeed?
- The law makes it clear that, if a fit parent decides to deny or limit visitation of a grandparent, that decision is presumed to be “in the best interest” of the grandchild.
- However, a grandparent can offer evidence that challenges that presumption and must prove that
- has established “a significant and viable relationship” with the grandchild AND that grandparent visitation is in the best interest of the child.
- To establish “a significant and viable relationship” with the grandchild, the grandparent must prove that:
- Grandchild lived with grandparent for at least six consecutive months with or without a parent present within the three years preceding the filing of the petition OR
- Grandparent was the caregiver to the child on a regular basis for at least six consecutive months within the three years preceding the filing of the petition OR
- Grandparent had frequent or regular contact with the child for at least 12 consecutive months that resulted in a strong and meaningful relationship with the child within the three years preceding the filing of the petition OR
- Other facts proving a strong and meaningful relationship
- To establish that grandparent visitation is in the “best interest of the child,” the grandparent must prove all of the following:
- Grandparent has the capacity to give the child love, affection, and guidance
- The loss of an opportunity to maintain a significant and viable relationship with the grandparent has caused or is reasonably likely to cause harm to the child AND
- Grandparent is willing to cooperate with the parent(s) (if applicable) if visitation with the child is allowed
What is a Grandparent?
All the recognized categories of “grandparent” are recognized and the term “grandparent” has the normal meaning. The Act defines “grandparent” as “the parent of a parent, whether the relationship is created biologically or by adoption.”
What is Harm to the Grandchild?
As used in the statute, “harm” A finding by a court that, without court-ordered visitation by the grandparent, the grandchild’s emotional, mental, or physical well-being has been, could reasonably be, or would be jeopardized.
What is the Standard of Proof?
Everything that a grandparent is required to prove must be proven by “clear and convincing evidence.”
What Happens if a Grandchild is Adopted?
The right of the grandparent to seek visitation terminates if the court approves a petition for adoption by an adoptive parent
Contact Massey, Stotser & Nichols, P.C.
If you need more information about grandparent visitation rights, contact the experienced family law attorneys at Massey, Stotser & Nichols, P.C. MS&N is a full service, Birmingham, Alabama law firm that serves families in the cities of Birmingham, Alabaster, Ashville, Bessemer, Clay, Fultondale, Gardendale, Homewood, Hoover, Leeds, Moody, Mountain Brook, Oneonta, Pelham, Pell City, Pinson, Springville, Trussville, and the surrounding areas. Visit our website at msnattorneys.com for more information about our practice groups including business law, real estate, accident, and personal injury law. To schedule a consultation, use this form on the Firm’s website or call 205-838-9000.