If you have want to learn more about Grandparents Visitation Rights, please watch Partner Anne Lamkin Durward’s recent appearance on Legal Speak which aired on Charter Channel 80. Many thanks to Kim Davidson and Tommy Carmichael for inviting Anne to appear.
LEGAL SPEAK TRANSCRIPT
Legal Speak is an exclusive presentation of the Alabama Cable network in prime time. This live program features guests in legal advice from a variety of sources, criminal medical, divorce, bankruptcy and workers’ compensation are just a few of the many topics that will be covered on Legal Speak. Join our host Thomas Carmichael and Kim Davidson, live on Charter cable channel eighty. Now join your host Thomas Carmichael and Kim Davidson for tonight’s show.
Thomas: Welcome back to legal speak Thomas Carmichael, Kim Davidson here how are you Kim?
Kim: Glad to be here as usual Union Stations always a good place to be.
Thomas: Yes, Yes, Yes, been a busy week this week.
Kim: And all over.
Thomas: I have been all over but really not that far but it’s just been busy.
Kim: Busy is not bad.
Thomas: No you know busy is when you think your appointment is going to take an hour and it takes an hour and a half which throws you off schedule for the next place you’re supposed to be that’s been this week.
Kim: That’s a good point, they are busy like that or somebody is late, due to traffic.
Thomas: True enough.
Kim: Well to get to the fun of our show tonight we have a guest, actually when I first practiced law I practiced with her, many many decades ago saying, well I guess it has been two decades ago. So I’ve known her a long time and I know her integrity. I know her knowledge of the law, which not only is what I know it to be but on our ride up here I found out it was even vaster than I thought, is that a word “vaster?”
Thomas: Mr. Trump makes up as many words as you need to use, so you can you can do that now.
Kim: That’s a good point; well then her knowledge is a vaster than I anticipated.
Kim: Huger, its huger, it biglier then I have anticipated and which is going to make for a fun show because you and I had talked about we wanted to have someone on a lot of the grandparent visitation statute that came into effect last year. Our guest was in the last one and I’m talking when I say she took it all the way I’m talking to the Supremes, and then also another area of the law that I learned she practiced today, so I want to introduce to ya’ll and our ward welcome Anne.
Anne: Thank you, I’m excited to be here today.
Kim: Glad you’re here and you’re a shareholder at Massey, Stotser and Nichols.
Kim: You’ve been there a long time, I mean.
Anne: Yeah, like Kim mentioned we started out together eighteen years ago.
Kim: Something like that.
Anne: Something like that and I went to Massey, Stotser and Nichols eighteen years ago now and have been out there since then. Then we have nine lawyers on our firm now, and we have a variety of things, which has kept it fun and exciting all these years so.
Kim: Heck yeah, how do you think about that?
Thomas: I was trying to think, I had your firm in a couple of cases with me, and there were civil cases though.
Anne: Right, we have several lawyers that do civil litigation, do a lot of construction law type or we do a lot of minutes polity work, do some general contract you know litigation type matters. In my area we have three lawyers that do family law, adoption and run the gamut of everything from a dependency delinquency to simple you know, divorces, high-end divorces and, and carry that through everybody, so and we have a section that does corporate real estate and Marshall type work.
Kim: And it’s a very interesting firm because I think it’s a good mix of people that come together to do a lot of different things, I mean your one stop shop to some degree.
Anne: We really can. What we don’t do, we definitely have people that we refer people to who can handle it. We do a lot like personal injury work but then we work with firms also in connection with those type cases. So it’s really been a very dynamic group that I’ve had a chance to work with and it’s really been fun.
Kim: Can’t beat that. Okay so she’s the guru and in the sense that I think I’ve heard her speak about three times on grandparent visitation.
Anne: Yes we have it again.
Kim: Well you had it once before.
Anne: We’ve had actually a statute. In various forms for probably the last about ten, fifteen, twenty years. The problem is, keeps being found unconstitutional. It goes back to U.S. Supreme Court case that basically caused a lot of confusion because it said you have to do this but you have to recognize the parent’s rights and they’ve actually been punted it all back to the states to say, states you get to make these decisions, you get to decide how you want to address what’s going to be in the best interests of these children, and that’s really the focus what’s going to be in the best interests of the children. Well, back my case that Kim referenced a little while ago, it was a great case we tried it for five days grandparents won, to prove that they.
Kim: And what court did you bring that in?
Anne: We brought it actually in a circuit civil court, the way the statute read and still actually reads, you actually bring it circuit civil which a lot of people find unusual You would think you would do that in a family court type arena, but the way the statute is you go into the civil court house as opposed to domestic relations, family court different things like that.
Kim: Because you had one Judge Boohaker.
Anne: Yes, had Judge Boohaker, fine, fine jurist, he was very attentive, did great order which just as lawyers it’s great to have a good judge help you in your case of ours writing a good order so when we went up we had a good order to go up on. We went to the course of civil appeals first, had oral arguments that day. We talked for a long time with the judges, my red light never came on and I think I stood up there for an hour with conversing with the justices that day. Then they were ruled and ruled actually against the grandparents and that that round so. Randy Nichols, one of my partners and I appealed it to the Alabama Supreme Court. We had oral arguments on that in front of the full panel of the Alabama Supreme Court actually over Cumberland School of Law in front of fifteen hundred people, came out for your oral arguments that day. The kids actually stayed awake that day; apparently they found it to be on point with things they go through in life with family relations. So, we argued it and that’s why in a it was one hundred page opinion, the Supreme Court struck down, said unless you can show there was harm in the statute to the grandkids, we’re not going to let it stand, so hence we have our new statute.
Kim: Well in that case, was your grandparents, was their child alive or a strained relations?
Anne: It was different and this is one of the big changes with the statute and under the old statute the parents could still be married, and that was what was in our case, was the parents were still married and had decided to not continue the relationship with grandparents. So that’s where we went, well under the new statute you cannot do that it any longer. The parents either have to be divorced, never married or have one parent that has passed away. In order to come into it now so, that is a huge shift in what they do now.
Kim: Heck yeah. Have ya’ll had that up here?
Thomas: No, well I had a phone call probably three or four days ago asking about grandparents’ rights I missed the call but I had a memo that came in about it so it still comes up, but we haven’t had one but I know of, to be a straight out situation. Most of which the dependency type situation where you’ve got parents that are not taking care of their own children and so grandparents come in, but in my office I don’t think we’ve had a straight grandparent case in quite a while.
Kim: Well could you walk our viewers through like where you file it, what it means to go the court of civil appeals and the Supreme Court?
Anne: Certainly, I will do my best here. Basically when you have that call come in you have to look at are you going to even get in the door to the courthouse before you really want to undertake it because as Kim well knows any kind of family case is exhausting emotionally taxing. It’s they’re hard cases and their very tragic cases a lot of times, you have good people on both sides of the equation, who just for whatever reason decided they can’t work together for a family anymore. So you look at it and the new statute is very clear on how you can get that threshold, and if you don’t you might as well just not even try unfortunately, you have to show as the grandparent a substantial relationship with those kids. You have to of shown very involved, for period of at least twelve months before you go through, through the process. Twelve months substantially involved where it would be damaging, really is the threshold Tommy, that’s what you’re saying of a dependency type case. You’re really almost getting to that level. It seems almost and though this new statute of a harm is going to result to these kids best severing the relationship and how are you going to prove that harm because nobody wants kids to ever come to any kind of harm. So how are you going to show that, you know is that their grades are falling or they have emotional issues, which nobody wants obviously? But how are you going to show that how’s that going to manifest for these kids before you before you go there. You can also show if you were a caregiver, as we know lots of parents work outside the home, and rely upon grandparents to take care of their kids during the day while there are at work or at night, with they work in the night shift too. So if you can show you’ve been a caregiver in some capacity for a period of six months, that’s one way you can get in or as we know lots of boomerang kids they come back home, live with their parents. Thank goodness for lots of us and they lived in the home for more than six months that gets you at least through the door. So you look at it from that standpoint are you there? Then as the grandparents, you have to show again going back to that harm standard, where is the harm that’s going to result? You also then have to show that despite your differences with your children that you’ve had, who are the parents of these children, that you’ve guys can then work together, that you’re willing to listen to the parents, you’re willing to even if you don’t agree with what they’re doing, you’re going to do what they say and you’ve got to be able to say, I’m willing to do whatever so I can see my grandkids.
Kim: That’s got to be tough with litigation going on.
Anne: It is, it is hard, but you know you hope that the love that all these folks have for these kids is going to come through and hopefully that will show, and maybe get get them back where they need to be. So, you look at it from that standpoint and then you filed the case, right now the statute reads you would still file in civil court, there may be some local rules in other counties where you would file a domestic relations but here in Jefferson County we are still filing it in the civil division, we have a local rule to make sure everybody knows where it goes to make sure it goes to the right place. So yeah, there’s also going back to the dependency, you still have visitation rights you can get a dependency case to that separate from the statutes. So, if you’ve had that grandparent who’s raised that child up, taken care of that child and then the parents of gotten back where they get their children back the grandparents can ask for visitation in that form still too, and which I think is great because they’ve been there, you know they’ve been in the trenches with those kids helping them. So you still have that as a as a way to get visitation as well, and then in the adoption arena, we have a lot of step-parent adoptions that we all day. And a grandparent could come in that arena and actually in that arena, an aunt or an uncle and even certain other family members can come in and ask for visitation. So there’s still areas that take care of that.
Kim: So, would a step-grandparent fall under the statute or outside of it?
Anne: That way it is worded I don’t think so. I mean I think you’ve got to show you are a grandparent there are cases out there that even a great-grandparent could not come in, they are looking at strictly grandparents.
Kim: So if grandma is remarried, grandma can come in but Grandpa Ben is just going to be sidelined probably?
Anne: That’s probably where I would think; now of course you could file it together.
Anne: You know, let the judge decide and see what the facts and circumstances are going to, would probably be my first bet and see where you go from there.
Thomas: I talk to clients a lot of the time when we are representing the parent, that there’s a lot of tolling tribulation that’s coming in the future of just raising kids and you need the biggest infrastructure that you can get and so it’s great to have a working relationship with grandparents. That’s not always a lot easier for me to tell them than it is for them to accept that is a feasible situation but I can appreciate that you, there’s got to be some, I guess some path that you stay on.
Kim: It’s a Hilary Clinton moment, it takes a village.
Anne: It does.
Anne: Well, you know and to shift perspectives, you know the parents, we have to look at their reasoning too, some of them, I mean and there are valid reasons you know we all have those toxic relationships that we know about. So they had valid reasons a lot of times while they did cut it off you know they say I went through this is a child, I’m not going to have my children go through it. So you look at it and under the statute it is very very clear you have to give a good hard look at what the parents’ wishes are. I mean, what the parents say controls.
Kim: So that’s important regardless?
Anne: It is, you know the parents have reasons, sometimes they’re valid sometimes, sometimes they are not but that’s what the judge gets to decide.
Thomas: He can look through the pretextual reason that well, I did it because of thus and so, when it’s actually because that you didn’t buy a car that I wanted?
Anne: Oh absolutely, and it can go back years of anguish between parents, that’s you know, every family probably has that going. So you look at what’s what are the reasons for this, why have we gotten to this stage and that’s where the judge, that’s why they get, get put in that position because the parents can’t agree with the grandparents anymore. So it’s important to look at in the statutes very clear and as it well it should be, we look at what the parents say and the grandparents you have a hard burden overcome, if you’re going to go down this road to say why it needs to change.
Thomas: I’m okay with that too, I have told folks, that if I decide that when my children don’t need to be around them, my neighbor, our problem with that unless my neighbors my mother and then you know, and then there’s I can’t make that decision and there really shouldn’t be any reason that I can’t decide that my own mother is a bad place. I know her better than I do my neighbor.
Anne: Right, and you know and we, the U.S. Supreme Court has been very clear, parents, you know, you decide you don’t want them to go to that school. Well you got to keep kids in school until a certain age, but after that as a parent that’s really your decision. You know you see it with religion; you see it with medical care.
Anne: As long as it’s not harmful to the kids, as a parent you get to decide. So you look at it from that standpoint we have a very strong strong outlook on that as as you know U.S. citizens, this is our right as the parents to take care of our children. How we deem best, you know for these kids as long as it doesn’t cause harm, and that’s really where the courts look at it now, and I think it’s kind of shifted to that level. Unfortunately in some respects on the grandparents’ arena but that’s where we are so.
Thomas: How do you think the current statutes is going to hold up the next time that it is carried up?
Anne: I’m hopeful; I will say we are very blessed in Alabama. We have a group is called the Alabama Law Institute that worked extremely hard on the statute. They I think looked as survey of statutes from around the country to come up with a statute and they looked particularly at a statute out of Arkansas that’s been upheld as constitutional, and mirrored our statute a lot on that, and I think even probably strengthened it a little bit from the Arkansas statute.
Kim: That’s great.
Anne: I mean coming up with what we have. They worked very hard to try to listen to what the Alabama Supreme Court said in my case and then looked at, okay here’s other statutes, here’s other states who’ve wrestled with it because every state has a grandparent statute.
Kim: Oh really?
Anne: Of some form.
Anne: Yeah, it is about an even split to, its kind of interesting when we did our case we looked at all fifty states to see, you know what are the trends out there? What does it look like? And it’s about fifty fifty of a best interest standard versus a harm standard as we look at it and now we’re probably shifted it made twenty six over here, but our new statute really I think is probably about as good as it get and hopefully if it does go up which it will. I think there’s two or three cases they’ve been filed in Jefferson County and I’m sure in several other counties they’re making their way, you know is still brand new but so hopefully by the time it gets there they’ll be good cases to go up to, and we’ll get some good guidance from our higher courts as to what, what will have going forward.
Thomas: Well, I was thinking about the courts that you’re talking about it being filed in which is civil court, nothing prevents the local judge from reassigning it to the family court judge it would still have the same CV number.
Thomas: But it would be assigned to a judge who may be a little more or a lot better versed in family dynamics than somebody who’s not heard anything but car wrecks and medical malpractice.
Kim: Well they won’t do that in Jefferson County, trust me because Ann was stuck there the one that I filed in the fall they kept it in circuit civil, with us saying, why don’t you not telling a judge what I was suggesting, why wouldn’t you, and even the judge I was assigned to was like, this isn’t my area I’m going to have to learn a lot. Wouldn’t it be better and our presiding judge was like, no stays, and we were like, okay.
Anne: I do believe they’re looking at maybe amending the statute to make it where it would be filed in a family court arena of a domestic relations court or a family court, because two you can intervene, say there’s a divorce pending, the grandparents now can intervene into that divorce or file and to go that route too. So you could get into domestic relations court or if like I was saying before there had been a dependency or child support case type case that’s out in family court, you would go out there and handle it out in that area.
Thomas: And I know one Walker County and Winston County and Fayette County, in each of those counties the sitting district judge, sit specializes is a circuit judge to her family or domestic relations cases and I would imagine that if one of these were filed in Walker County, it pretty promptly would be reassigned to the best relations judge, your divorce court.
Anne: I say all the statute says that you file it in the circuit court, so that’s pretty broad and ever counties set up just a little bit different, so it’s really going to be up to each county to decide how it’s going to try. So you file at circuit court and then.
Thomas: I don’t guess you can have a jury trial?
Anne: No, still can’t get a jury trial in family court.
Anne: Which is probably a good.
Kim: And it’s interesting when you file it in the circuit civil you still have the prompt on Alacourt about whether or not you want to jury trial because I haven’t taken it off.
Kim: And you’re just sitting there like you’re tempted just to see what happened.
Anne: Yeah, paid extra money and lets see what happens.
Kim: Yeah, let me see same, and yeah you know, like yeah I don’t want to pay the extra so.
Anne: No, no no no, I don’t know, it’s hard enough with one person deciding the fate of the family, I don’t know if we had another eleven people helping decide that it would be better.
Thomas: That would need to be just for the jurors that always make an excuse, let them sit through one domestic case and see how it all turns out. We need to take a break, so lets take a break right here, we’ll come back and talk more from Ann Durward.
Anne: Thank you.
Commercial 21:06 – 23:25
Thomas: Welcome back to Legal Speak, as we were going to break, we were talking about whether or not you get a jury trial.
Kim: Yeah, hoping we would.
Thomas: On a domestic relations case and the answer that is you can’t, and so all, who has the burden of proof once you get to the hearing?
Anne: Well, the grandparents’ do, they are called the petitioner, the plaintiffs. So just like in any case whoever is bringing the case in this arena.
Kim: And they can bring it just out of the blue, they’re not, they don’t have to wait parents’ is just their case.
Anne: Their case, the only limitation is you can only do it every, I think its every two years.
Anne: That’s the only limitation on how often you can bring it in when you bring it.
Thomas: Well that’s fair because grandparents with a lot of money just could wear out and.
Kim: Oh absolutely.
Thomas: And I’m going to ask you about attorneys fee but go ahead, you bring it in and then what?
Kim: You pay her a lot, so let’s go ahead and get that straight.
Anne: Yeah, it’s not a cheap undertaking, especially if you wind up in the Alabama Supreme Court, but no, so you look at it from the standpoint of the grandparents have the burden of proof, and as rightfully lots of folks know you have different levels of proof. So like you think about a criminal case you have beyond a reasonable doubt, then you have the lowest burden of you know, kind of we’re down here just kind of well we’re clear and convincing proof which is pretty high, I mean I still got to remember it from law school, is you got beyond reasonable doubt and then clear and convincing is right there, so look at it from that standpoint you’ve got to have a high burden to make, and is how are you going to meet that burden, you know are you bringing in experts or are you going to bring a psychologist again going back to that harm standard. Who’s going to testify? Teachers, come in, and it’s a big undertaking. I mean it’s not a small little little case that you’re looking to bring, your bringing in and other witnesses to testify as to the relationship that you had with the with the grandchildren, the involvement you would have had with everybody. So it’s and you got to meet each and every one of those elements, the way the statutes written if you don’t make one of them, you lose. So…
Kim: So, period end of story, you got to when you meet with the grandparents they have to check every box.
Anne: And that’s what we did in our case under the old statute even it had a six different factors now they’ve narrowed it down but there are stricter factors really, but you look at you go, okay I can meet one, three, five, seven you know, and it’s still that way but now it’s you’ve got to meet one, two, three, four, and each and every one of them has to be met and met with clear and convincing evidence to the judge that this is going to be the right thing.
Thomas: Well with that high standard, then it does require, like a certain level scrutiny from the lawyer who’s potentially going to be representing grandparents, because if you know you can’t make, a more likely than not to test which is the preponderance of the evidence generally, then if it’s iffy then you’re just a long way from clear and convincing.
Anne: Of course you never know how cases try too.
Thomas: True enough.
Anne: You know sometimes they come a lot stronger then you may think it to, but so you just look at it from the standpoint of what of what do I have and really you look at what’s the impact on these kids? What is going to happen with these children, and unfortunately you do have a guardian ad litem, which is a lawyer, appointed to represent the children. So the children do have a voice in this proceeding too, so…
Thomas: Okay, so you’ve got a guardian ad litem appointed?
Thomas: And tell our viewers, we talked a lot about guardian ad litems but not necessarily the people that are watching tonight, that what a guardian ad litem is appointed to do?
Anne: Guardian ad litem is like one of the three of us sitting here; it’s somebody who the judge appoints, who is independent, who doesn’t have a dog in the fight except to look after these children. They come in and they can talk to, I’ve usually had my guardian ad litems, and I’ll just speak from my personal experience. Have a guardian ad litem meet with the children obviously, meet with the parents, get to know everybody, a lot of them go and meet with teachers and interview doctors, look at medical records, look at school records, go to the counseling sessions, talk to the counselors, and be very involved and really get a good feel for what’s going on. They sit at the table with the other lawyers, they get to ask questions, they participate, they some judges ask them for recommendations based upon the evidence that was presented to the court, and are really the voice of the children. Make sure that the children’s voices have, have something to say that day.
Thomas: How are they compensated?
Anne: But, in a grandparent case it’s by the parties.
Thomas: Okay, but the grandparents only, or by the grandparents the mother, grandparents the dad, who?
Anne: Under the new statute it can be by either parent, either party.
Thomas: So the judge.
Anne: It could be a combination.
Thomas: By the judge’s discretion, that’s who has to pay?
Anne: Yes Sir, and under the new statute, the judge can also award attorney fees to either side.
Thomas: Well that was that was the question that I said I was going to get to because, out about three domestic proceedings back then I was in I was explaining to the judge the lawyers that I had to prevailed, were asking for attorney’s fees, and my client just couldn’t quite show that he had met McClinden to change custody back, and they were asking for attorney’s fees and I was telling the court that this is way too important of a process to start leveeing the attorney’s fees on top of somebody, and I really feel that way so..
Anne: It’s up to the judge to decide, like I say under the new statute, they can award attorney fees to the prevailing side and also can tax cost and that would be probably I would imagine deposition cost or other costs that were incurred during the process as well as the guardian ad litem fee. Under the old statute it really was the grandparents’ paid the bills.
Kim: Right, under the one you had.
Anne: Under the one I had it was more on the grandparents for the guardian ad litem, they did not have to fee shifting provision that this one does have a far.
Kim: Don’t you think that would help some, so if dad or mom is kind of ingrained that they got to pay to be in the game?
Anne: Right, I really don’t have a problem with it.
Kim: A little skin in the game as we call it.
Kim: A little skin in the game.
Anne: You know and it’s much, you know everybody puts in seven hundred fifty dollars in the beginning and at the end of the day the judge can make one side pay more than the other, it’s still up to the judge as to how he’s, he or she’s ultimately going to do it.
Anne: So you just look at from that standpoint of where are you, who’s doing what the process to make it all happen.
Thomas: So if you got just a vindictive set of grandparents but he may have to carry all the water at the end of the show.
Anne: Absolutely, it’s the way the new statute is so.
Kim: And well and judges, are I think pretty good at getting out, don’t ya’ll think that?
Anne: The rub. Absolutely, I mean in most of my domestic cases you get that feel. You know who, who was a problem child?
Kim: Sometimes they’re wrong.
Anne: That is true, and who did that party not have the ability to pay but the other side did, and then they win. You know prevail so do they not get compensated, and its still that same kind of, I think, look at that you would have.
Kim: And you made a good point about you never know how the case is going to try, how people behave on the stand because…
Kim: I mediated case for your firm where the guy, I mean I just was like, oh my gosh you are the most vile human being ever, and but…
Anne: That was not my client.
Kim: Yeah, but later on Ann tries the case and it’s a very good ruling for him because he can he had a better presence in a courtroom, so it’s interesting because you just don’t know you’re sitting there like, oh the judge is going not like you, and then of course she puts him up there, and he looks like you know the right reverend down the street.
Anne: You know, he had a good lawyer.
Kim: There you go and that matters, but yeah it’s not a cheap undertaking.
Kim: There’s no state funds for grandparent statute nobody gets appointed a lawyer.
Anne: It’s you not have a right to a court appointed lawyer in this arena. It’s your paying and you’re paying your own way as you go through and then like we were talking about if it goes up on appeal, that’s even more money that you’re outlaying. If you go to the Supreme, Alabama Supreme Court even more money that you’re outlaying, and in our case we even tried to get it up to the U.S. Supreme Court to get a ruling but we kind of hit the chord at the same time Obamacare and immigration also have U.S. Supreme Court and at they were little busy that term, so they decided they were just going to send us back to Alabama and let us deal with our own issues.
Kim: Go back to Alabama, we’re busy, you’ll never get there now for sure.
Anne: No, no no. so we had our shot that time, but we are like, yeah we are probably not going to get picked up this time around, so but it would have been a good case it really, we were hoping they would have picked it up because I really do think that case would have answered a lot of the uncertainty that had resulted from the famous Trussville case.
Thomas: And it sounded like you had a good record in that case as well?
Anne: We really did.
Thomas: We are going to take a break and we’ll come back and talk about the importance of building that record as you’re trying your case on either side. See you in a minute.
Commercial 32:49 – 34:29
Thomas: Welcome back to Legal Speak, as we were going to break, ya’ll were talking about the appeal that you were hoping that carried it all with the U.S. Supreme Court and you talked about having a long oral argument in front of the appellate court, now although that’s not really part of the trial record I guess the court could reflect on that would tell the tell our viewers about how the record is built from the inception of the case until all the way through.
Anne: Well what you do is you start actually case with filing your complaint, like any other case and you lay out your grounds or what you’re going to do and what you’re asking for the really what you are asking for from the court. Now if you’re looking to challenge the constitutionality, you got to make sure to put the attorney general’s office on notice at the very first pleading. If you’re going to look at challenging it, as the parents in this case, and then you look at it from the standpoint of, okay what are you going to do, at trial you make sure that you put every bit of evidence in, you make sure the court reporters get down all those very valuable words that you’re speaking and that the testimony is, and you make sure that the judge is keeping good track of everything. I say we were very blessed in ours with Judge Boohaker, was very detail oriented and made sure everything was done exactly how it should have been, because under the statute he does he or she the judge has to right to the reasons why he believes this is in the best interests of the children. You can’t just say, oh I’ve decided, it has to be this is why I believe this is how it needs to be, and he wrote us a sixty-seven page opinion.
Kim: Took me forever to read it.
Anne: Yeah it was a long one. The trial court judge wrote that and so it was kind of funny we were in court civil appeals and one of the judges asked me, well where in the record did he say something, something or other, and I said, oh we found it on page fifty-five with Judge Boohaker’s opinion, but, oh well okay, so its right there, I promise. So you know so as long as you have that it helps you as you go up. And like I say we had a very clean record fortunately I had a very good opposing counsel who was very good trial attorney as well and very good guardian ad litem. So we made sure that everything was done just as it should have been done when we’re looking to do it and we had you know, legal arguments that we presented to Judge Boohaker, where we discuss you know, what should happen whether the law should be upheld or not he, he has to duty to uphold the law as constitutional. So you know he said, I recognize that but you know I have my duties, as trial court to recognize the law the state of Alabama is a law of the state of Alabama, got to follow it. So you know we had we were really lucky with how the case came to be in its fruition and that’s what you want as a lawyer, as a party in the courtroom, you want everything to be as it should, and so when we went it was very you know it was clean. We had a good record, we had good facts.
Kim: At first you’re just writing briefs.
Kim: Tell our viewers what that means as opposed to trying a case with the trial court.
Anne: It’s a lot like making sausage. It’s the only way I can phrase it.
Kim: Its sounds like on of your analogies.
Anne: It’s not pretty, Randy and I spent lots of nights probably saying some words that can’t be repeated.
Kim: If Randy Nichols is in it, you’re waiting to the last minute.
Anne: Actually yeah, but we worked for several weeks leading up to it, because it was a long record, I mean we tried the case for five days, so it was a pretty hefty record but we, so you write briefs and like I say the first go-around the parents appealed the decision so they went first and wrote why they thought that they should have won. Then we countered back with why we believed we won which was much easier to write, and then the parents got a final say so all in writing, and then court of civil appeals decided they wanted us to come to Montgomery, all the lawyers involved, come down and talk to them.
Kim: And that’s not normal.
Anne: No it’s not.
Thomas: Especially in Alabama, it’s not a low eleventh circuit, which is a federal appeals court. It’s routine to have oral arguments there but not very often are appellate, Alabama appellate system.
Anne: Especially in the civil court level, which is the intermediary level. They really don’t. I think they’re having more now, but they really don’t, but they invited us to come to Montgomery.
Kim: I like that “invited.”
Anne: Yeah, you know, we trucked down there and made one of my partners drive because I was a little too nervous to drive, and we drove down there and I say the other side got to have their say as to why they thought they were right, and actually at that point in time the attorney general, the deputy attorney general was involved, so he got to argue as to why the statute should be upheld and then we had our chance to argue as to why we believe we were correct in the lower court and then the other side gets the final say so we had that argument then like I say it went on up to the Alabama’s Supreme Court.
Kim: What did the justices at that point to ask you questions, or are you timed?
Anne: Well you’re supposed to be timed. We each had thirty minutes, was what we were allotted and I actually had to divide my time with the attorney general because we were technically on the same side.
Kim: Wow, five days into fifteen minutes.
Anne: Pretty much, yeah.
Anne: Yeah fortunately.
Kim: You’re on David Letterman’s Top Ten.
Anne: Exactly, I mean you’re trying to hit it hard and you know you spend weeks getting ready for it to. You know everything you can think of they’re going to ask you it’s worse than any quiz you’ve ever had in school you know it’s like the fifty states are remembering all the capitals and they’re not going to match up, and how’s it going to be. So you look at it from that standpoint of, okay I’ve got fifteen minutes. Fortunately the courts want to hear from us, in these environments and so they were really good about letting, as long as the judges were asking questions, like I said, my red light didn’t go on as I went over to the clerk afterwards, I said, I think that stood up their a little bit longer then fifteen minutes, he goes, oh you were fine, I said, oh, okay, I was up there a good like forty-five minutes. So you know we we had good dialogue and I mean the judges I could not have asked for a you know we’ve got good appellate judges and they were very involved, they were very attentive, ask good questions. You know really were struggling with a lot of the issues that they were being asked to decide. So you know you can’t ask for better than that really and…
Kim: That is tough for them because you’re used to reading about people’s home-life not feeling it is much as we all do.
Anne: Because we’re in the trenches with, yeah I mean honestly the three of us, as you’re dealing with the people, you know you’re there with them through all the good and the bad that we deal with our clients. So from that standpoint it’s a really it was good, you know and it’s open to the public. I mean you go down and hear oral argument and they have it so you know all of our clients where there, the kids were there, that was interesting but yeah that’s kind of heart wrenching. And you know so it was it was really it was a good thing to do and then I like say, we we lost at that level and so we appealed it actually to the Supreme Court and all nine judges there.
Kim: And that’s not easy to get to either, that’s not normal.
Anne: No, that was definitely not normal and they called us two months before and said we hadn’t even written briefs yet we just on the petition, and said, we want ya’ll to do oral arguments in Cumberland in October and this is in August. It was actually in family court, got a phone call, the Supreme Court’s calling you, you need to take the call, I’ve told the judge I was front of I said, apparently I need to take a phone call, sorry excuse me I’ll be right back.
Kim: This one trumps you, sorry.
Anne: Yeah, the one time it does trump, yes and he let me go out and into the hallway wand take the phone call. So anyways, we we went and did it and like I say, we were in Cumberland and in front of everybody and…
Kim: There were a lot of people there, I was there, it was packed.
Anne: Yeah, it was packed and it’s really great outreach. If it’s of the Birmingham Bar Foundation, I will digress for just a minute, but its on every year just about. The courts come to Birmingham, which is very unusual, come to Birmingham and sit and hear cases and the foundation works with the area schools and brings in kids to hear it, hear the oral arguments as a great outreach program that the bar does in Jefferson County and any county could come if they want to. So anyway so we had a great crowd because it was a hot issue.
Kim: It was huge.
Anne: And it was really one.
Kim: Half the Birmingham bar was there at the…
Anne: We brought out the people.
Kim: There were a lot of us there.
Anne: It was, it was interesting. I was very nervous that day. It was only my second time today, I’ve been ever been mic’d in my life, so that was the first time and it was you know you could really see the judges weighing the issues because at that level you truly are looking at what’s going to be constitutional and not and they were very it was a hot bench, you may remember, I mean, they were all asking questions the whole time. So it was very good, I mean it was it was a good experience and, you know they were given a lot of thought to it.
Kim: Yeah I felt like they wanted to, but by their questions they wanted to do the right thing but I also felt like they were a little, they were used to the family law dynamic, you know?
Anne: You know, they did do a lot of family law cases.
Kim: But not like in front of them like?
Anne: Well, I did ask them one time, because I have been on the Bar Foundation and asked them one time, why don’t you have family law cases come up for oral arguments, especially in Cumberland, I said, sometimes we can’t really discuss those issues in public.
Thomas: That’s true, there’s a there’s a lot of laundry that that’s in the basket there. Let’s take a break and then we will come back and pick back up where we’re at.
Commercial 44:13 – 46:35
Thomas: Welcome back to Legal Speak. We’ve talked about appeal; you know we covered it pretty well. Let’s say that the grandparents prevail what, what do they end up with?
Anne: Well you look at again it really goes at that level, what’s going to be the best interests of the children, you know you look at how old the kids are, how (Inaudible,46:56) with different topics. There was a case that came out several years ago that where the parents, the grandparents had been given pretty much a visitation schedule like a parent would have, you know we call it standard visitation in the old, when we first started.
Kim: Old days.
Anne: Old days as we’ve gotten older, where it would be, you know weekend visitation you’d have time at the holidays time in the summer and the case came out that that’s probably a little extreme, you know that’s that is interfering too much in the parental time. And that’s what you look at so really I think if you look at from the standpoint the judge looks at the standpoint of, how can I keep this relationship between the grandparents and the children together where they can have quality time together where I’m not infringing upon the parents and the parents’ time is that’s another dichotomy that you get into so you would look at, I would say probably you know maybe a night during the month, maybe a couple of nights during the month, week during the summer, you know a weekend, one week in a month, and each families going to be different because of the, you know do we have a deceased parent.
Anne: So you have grandparents stepping into those shoes where you might get far more expansive visitation in that arena, and so you would look at it from the standpoint of what’s going to work, and if it be a long weekend, could it be a week in the summer time around the holidays. If you are if you prevailed at that point you were definitely wanting to maintain that relationship.
Thomas: And I guess if you’ve got a parent, oftentimes I think grandparents living across the street but they may live in another state.
Anne: Oh yes, you have that. You would have or distance I mean we’re very mobile society these days and you could put in face timing with the grandparents telephone communication with the grandparents. The judges even under the new statute would have just as they always do what’s in the best interests of the children to give it that wide latitude of looking at it from the standpoint of how can I do this and how do I make it work. You know to maybe hopefully ease some of the tensions between everybody and at one point in time hopefully everybody loved each other. Maybe we get back there when maybe the litigation is over is hopefully where you’re looking to go. So really I would say and it would look at to how involved the grandparents were beforehand and how easy is it do it, and to make it all work.
Kim: What about counseling, you know, like in the case I’ve been in my people had hopes of re-unification, they didn’t have a deceased child, and you know the judge suggested early on we need to try therapy first before you rush to court and do this, little cheaper. Is it within the judge’s discretion to order something like that while the case is pending, maybe?
Anne: That’s a really good question. As of course in the family court or in the dependency type case the judge had a lot of latitude of ordering counseling and all sorts of things for people to go (Inaudible, 50:02) and the grandparent case I can’t really see him doing that. You know it would probably looks it probably would look, it would probably look at the guardian ad litem to give a recommendation as to whether that would be beneficial. I certainly think it would be best for everybody to try to do counseling, to, because once you say those words in the courtroom, you can’t unsay them.
Thomas: I think you’d be real hard to get there if you’re especially with the standard that’s clear and convincing because if the judge isn’t clearly convinced they need to get together than there’s no need for therapy because that would be lowering the standard.
Anne: Well but if you look at the standpoint of if counseling can help us get there were maybe we don’t have to have the trial to have to have court ordered visitation.
Kim: Or depositions because that gets mean.
Anne: It does and like I say, you can’t unsay the words once you get there and unsee that evidence or or look at it from that standpoint. So if you can do counseling and avoid litigation that would be good. In this in a family arena and in any type of family arena if you can avoid it but if not you go to trial. You have that counseling maybe something good to look at to maybe.
Kim: To co-parent because you’re going to have to somehow communicate after a trial.
Anne: Communicate, get people back on the same page again to work for these kids. Going back to Thomas question about the clear and convincing, I don’t really think you’re lowering it I think if you can show that you’re able, you’re willing to work together. I think that would help is the grandparent.
Thomas: Well, lowering maybe been the wrong term but it’s presupposing that the grandparents are going to be able to meet the burden. Otherwise put in the grandparents and therapy or the parents and therapy is unnecessary.
Anne: I could see that you know you’re really going to look at it from the standpoint of how are we going to fix this family, and you know unlike in a dependency case you don’t have that ability as the judge a lot of times and as we all know, especially in domestic relations the judges have a lot of authority to order parents into counseling to try to work on those issues. So I would think they probably could but you’d have to have a court order and…
Anne: If somebody asked me for it.
Kim: We brought up a couple of times, we used the word dependency, tell our viewers a little bit about what that visitation, how the division, visitation and dependency meet.
Anne: Okay, well dependency is where you’ve had a parent who has not been maybe doing the right things as a parent. We’ve either had an abuse or neglect or a parent choosing to choose themselves over their children and a grandparent or other family member has stepped in and has gotten custody of the children, whether it’s a temporary custody arrangement or a long term custody arrangement. Unfortunately in society today we all we read about those problems there when academics and everything and it’s affecting our children, I mean nobody can deny that. So we’ve had a lot of grandparents other family members who have come in to take children. It keeps them out of foster care and it puts them with a family member. Well at the end of the day parents back on track were doing great, you know they’ve, they’ve got where they need to be, the judge told them to. They’ve successfully completed drug court and we’re looking at reifying the family but we’ve got a grandparent here or an aunt or uncle who’s taken in these kids and its months. You know, it could be months before they get back to their parents. So we’re not going to cut them off, the judge can say, I’m a give visitation to those parents.
Kim: Doesn’t have to be grandparent?
Anne: Doesn’t have to be a grandparent.
Kim: So Uncle Tommy could have visitation?
Anne: Yes, under the way the statute. It’s not even a statute it’s really just kind of case law and they’ve just recognize that that’s a good thing for the children and you’re under the dependency family court type rules and so they give a lot more discretion over there.
Kim: So, you wouldn’t have to file the lawsuit there?
Anne: You would stay under family court for that and or that same heading and same case.
Kim: Which is an easier, sounds like an easier burden?
Anne: Yes, because then you’re just in a best interest type scene.
Kim: And that’s where the court really just wants what’s best for the kids.
Anne: Absolutely, and what’s going to be best long term for these kits to keep stability to make sure that you know the kids are not impacted by grown-ups and what grown-ups decisions can be.
Kim: I like how you worded that where parents oftentimes think of themselves before they think of their children.
Anne: They do.
Kim: That is a pretty classy way.
Thomas: And that’s the way it turns out, and if when you’re talking to them that’s exactly, they’re oblivious to what a poor decision that was, it just seem like the right decision.
Anne: Well yeah, it was a great idea to go do that at that moment in time.
Kim: Yeah maybe not or move it with a registered sex offender, I love those.
Thomas: But he didn’t really do it.
Kim: He didn’t, he didn’t, and he just registered and it happened a long time ago and you.
Anne: It was misunderstood.
Kim: Exactly, it was totally misunderstood and she doesn’t know why Little Johnny cannot live under the roof with him.
Thomas: That’s right.
Kim: But you know they could have a child together.
Anne: Yes they can.
Kim: And the child can stay there?
Thomas: Which doesn’t, which really doesn’t make sense?
Anne: Parents rights, it trumps everything.
Kim: See, that’s what she’s talking about..
Anne: They even let parents get to make bad decisions all the time.
Thomas: True enough.
Anne: That maybe we all wouldn’t agree with?
Anne: But that’s their decision.
Kim: Their bad decisions is our business.
Anne: It does it keeps us all sleepless nights.
Thomas: We’ve got about two minutes.
Kim: You can tell Ann, you do something at Cumberland with the try, you (Inaudible 55:49)
Anne: (Inaudible 55:49).
Kim: (Inaudible 55:49) She travels with Cumberland Law School, and I say that because like you’ve won like everything and she’s everywhere with oh it’s amazing.
Anne: I have as a result actually of my grandparent case, I got asked to come be a coach for the national Newport teams which is appellate advocacy and I had some great teams it’s all the kids. I mean as I call them my students, kids they’re younger. My students have been really, I’ve had some really really smart kids and have done very very well Cumberland’s been very supportive of the, (Inaudible 56:24 trial team, which lots of folks know this is done very well and we’ve also got the Newport team, negotiation teams and other teams to. So, it’s a great chance for the students to pretend to be in front of the U.S. Supreme Court and argue, argue cases.
Thomas: Little clinical experiences, some hands on before you actually get out there.
Anne: Before you have real people’s lives at stake in your hands.
Kim: And she’s active in the Birmingham bar, which is a member of the State Bar of course, which is active with the Birmingham bar, you’ve been on like every committee. She will be our president soon, is what I say.
Anne: I hope one day.
Kim: I’m voting for her, now president 2020, right?
Anne: You never know.
Kim: Bring it on.
Anne: I’ve really enjoyed It’s been a great outreach and I get to meet great lawyers, do some good work for me really been blessed to have been with the Birmingham Bar Foundation, Legal Aid Society and really working with outreach and letting lawyers do great things in our community because we Bob McKenzie, our president last year said as lawyers, we have a unique set of skills that nobody else has and we need to use them for those good things that we can.
Thomas: Well certainly you’re well versed, tell our viewers, one more time, how to get in touch with you.
Anne: All right, my firm is Massey, Stotser & Nichols, we’re located in the eastern side of town in Trussville That we go all over, my phone numbers 205-838-9000, would love to talk to anybody, and I appreciate you all having me on the show tonight.
Kim: Glad you’re here and like I said, I got to watch first hand the work she did on that grandparent visitation. Incredible legal skills, incredible legal skills and I saw her whip a witness into shape that I thought the judge would hate and put in jail, and I am still amazed by that one. So, I know she makes her people mind and do right. So yes call (Inaudible, 58:19) 838-9000, I don’t have anything else to say, if I mean that’s all I got, she’s great.
Anne: Very sweet, thank you thank you very much for having me on your show.
Thomas: Good to have you, and we’ll see you all next week on Legal Speak.