The Lawletter Vol 40 No 12
Brett Turner, Senior Attorney, National Legal Research Group
One of the hardest issues in all of family law is grandparent visitation. In Troxel v. Granville, 530 U.S. 57 (2000), the U.S. Supreme Court struck down a Washington state statute allowing the court to award grandparent visitation based only upon the best interests of the child, finding that such a broad standard violates the liberty interest of the parents in having custody of their children.
But Troxel did not decide what the proper standard for grandparent visitation is; it decided only what that standard is not. Case law since Troxel has disagreed substantially as to what grandparents must prove in order to be awarded visitation.
No state has written more opinions in fewer cases on this issue than Alabama. In Ex parte E.R.G., 73 So. 3d 634 (Ala.2011), a nine-judge court wrote six separate opinions on the subject. The end result was that the court struck down Alabama Code section 30-3-4.1, which allowed the court to award grandparent visitation on a pure best-interests basis.
The legislature then added the following language to the statute: "If the child is living with one or both biological or adoptive parents, there shall be a rebuttable presumption for purposes of this section that the parent or parents with whom the child is living know what is in the best interests of the child." Ala. Code § 30-3-4.1(d).
The constitutionality of the modified statute arose recently in Weldon v. Ballow, No. 2140471, 2015 WL 6618983 (Ala. Civ. App. Oct. 30, 2015) (not yet released for publication), in a case in which the child lived with a biological parent, so that the statutory presumption applied. The issue was whether the presumption saved the statute. Answering this question required a five-judge court to write four opinions. But when the votes were tallied, the statute was held unconstitutional for a second time.
The first opinion, signed by two judges, construed Troxel to provide that grandparent visitation cannot be awarded based on a best-interests-of-the-child standard alone, regardless of the burden of proof. "Under the 2011 amendments," while the burden of proof is reversed when the child is living with a parent, "a court can still award grandparent visitation over the objection of a custodial parent if the court decides that it is in the best interests of the child. The [Grandparent Visitation Act], as amended, continues to invade the fundamental rights of parents to make their own determinations as to the best interests of their children." Id. at *14.