Grandparent Rights in Alabama
Alabama is the scene of one of the most recent struggles over grandparents' rights.
In Tripp v. Owens, a 2014 decision, the Court of Civil Appeals of Alabama reversed a Madison County trial court's order dismissing the paternal grandparents' petition for contact and visitation rights with their son's minor child. The trial court had dismissed the petition on the ground that the Alabama Grandparent Visitation Act had been declared unconstitutional in a 2011 opinion issued by the Alabama Supreme Court in the case of Ex Parte E.R.G. and D.W.G.
On February 13, 2013, the trial court entered a judgment dismissing the grandparents' petition because, it stated, "the Alabama Grandparent Visitation Act was declared unconstitutional pursuant to Ex parte E.R.G. and D.W.G., 73 So.3d 634 (Ala.2011)." The grandparents filed a motion to vacate the dismissal of their petition, asserting, among other things, that the Alabama Supreme Court's opinion in Ex parte E.R.G., 73 So.3d 634 (Ala.2011), had been issued on June 10, 2011; that, one day later, the Governor of Alabama had signed into law Ala. Acts 2011, Act No. 2011-562, amending the Grandparent Visitation Act ("the new Act"), § 30-3-4.1, Ala. Code 1975; and that the new Act had become effective on September 1, 2011. The grandparents requested that the trial court vacate its dismissal of their petition and adjudge that petition under the new Act rather than under the former Grandparent Visitation Act ("the former Act"), former § 30-3-4.1, Ala.Code 1975, which had been held unconstitutional in Ex parte E.R.G.
The Appellate Court found that the trial court had incorrectly concluded that the ruling in Ex Parte E.R.G. and D.W.G was applicable to the revised version of the grandparent visitation law, as the revised legislation took effective after the case was decided. The Court of Civil Appeals sent the case back to the trial court with instructions to provide the grandparents with an evidentiary hearing on their petition unless the constitutionality of the revised version of the grandparent visitation law is challenged and ruled to be unconstitutional.
The state's current Grandparent Visitation Act establishes a presumption that the decision of a "fit" parent to deny or limit a grandparent's visitation is in the best interest of the child. To overcome this presumption, a grandparent seeking an order for reasonable visitation rights must prove by clear and convincing evidence that such visitation is in the best interest of the child and that the grandparent has established a "significant and viable relationship" with the child.
In 2010 the legislature passed HB 348, which strengthened the statutes that have been in place in Alabama since 2003. This law, however, was not signed and effective until 2011. The case that occasioned the finding of unconstitutionality was E.R.G. v. E.H.G., that was decided by the Alabama Supreme Court just one day before the Governor signed the amended Grandparent Visitation Act into law.
In the case, the paternal grandparents had enjoyed a close relationship with their grandchildren until they had a financial dispute with the parents. The parents subsequently cut-off contact. The grandparents were awarded visitation by a trial court, but the decision was overturned on appeal because the grandparents had not shown that lack of contact would cause harm to the grandchildren. The case then went to the Alabama Supreme Court, which agreed with the decision of the appeals court, but on a different basis. The lead opinion of the Alabama Supreme Court found that "a prior and independent finding of parental unfitness" is necessary before the state can intervene in family matters.
Since the Grandparent Visitation Act (GVA) did not require such a finding, "the state’s basis for intervention through the judicial system evaporates" and the GVA is unconstitutional. (It is worth noting that the case occasioned a variety of opinions. Three other judges wrote concurring opinions; one "reluctantly" concurred; and two wrote dissenting opinions. The combined opinions are 134 pages long.)
The Alabama saga was not yet finished, though. The case was appealed to the U.S. Supreme Court, which in 2012 declined to make a ruling, letting the decision of the Alabama Supreme Court stand. All the details of E.R.G. v. E.H.G. are available in the Petition for Writ of Certiorari filed with the U.S. Supreme Court.