The Lawletter Vol 40 No 12
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.
Presiding Judge Thompson believed that a best-interests standard with a reversed burden of proof would be sufficient if the statute added additional best-interests factors, such as whether the grandparent had a prior relationship with the child and whether the grandparent had functioned as a parent to the child. Presiding Judge Thompson rejected the suggestion that "to pass constitutional muster, a trial court should find that the parents are unfit or that there has been a showing of 'harm' to the child before the trial court can award grandparent visitation." Id. at *16 (Thompson, P.J., concurring).
It is worth noting that when the parents are unfit or causing outright harm to the child, the facts will often be sufficient to support awarding custody either to the grandparents or to the state. If the same standard applies to grandparent visitation, such visitation will not often be awarded, because the same facts would justify a change in custody. In order for grandparent visitation to be practically meaningful, the standard must be probably something less than unfitness or harm to the child.
Judge Donaldson argued that grandparent visitation statutes impose upon a fundamental constitutional right of the parents and that the public policy justifying such an imposition must be stated by the legislature, presumably in legislative findings that accompany the statute. Because the legislature identified no such policy, Judge Donaldson concluded that the statute was unconstitutional.
Finally, Judge Pittman dissented, arguing that a best-interests standard for grandparent visitation is constitutionally acceptable as long as there exists a rebuttable presumption in favor of the parents.
Weldon is a good demonstration of the difficulties courts face in determining whether grandparent visitation statutes are constitutional. Troxel established what such a statute cannot do—allow a court to award grandparent visitation on a pure best-interests standard—but Troxel did not establish what such a statute constitutionally can do. State court judges have significantly different positions on this issue, and the cases therefore reach a wide variety of results. There will probably have to be additional litigation at the Supreme Court level before this question becomes more settled.