Appellate Court in Child Custody Case Divided Over Grandparent Visitation Claim…

Appellate Court in Child Custody Case Divided Over Grandparent Visitation Claim…

The future of Grandparent Visitation in Alabama is uncertain after ruling released last month on October 11th, 2019, in which the Alabama Court of Civil Appeals overturned a trial court’s award of Grandparent Visitation to a grandparent who filed the suit against another grandparent on the “other side” of the family. The Court narrowly construed the Grandparent Visitation statute to only allow Grandparent Visitation claims against natural or adoptive parents. Thus, the claim for Grandparent Visitation was dismissed.

However, the ruling was a “3-2” decision, meaning 3 of the 5 Judges on the Alabama Court of Civil Appeals voted to dismiss the case but 2 of the 5 Judges wanted to proceed with further review of the Grandparent Visitation claim. Most decisions of the Court are unanimous, 5-0 decisions and most of those that aren’t unanimous have but one dissenting Judge.

There is no fundamental right or “common law” claim for Grandparent Visitation. (“Common law,” generally, refers to the development of the applicable law over time based on Judges’ previous decisions on similar matters or issues.) Therefore, Grandparent Visitation only exists in Alabama as a creature of statute, or law drafted and passed by the Alabama Legislature before being signed into law by the Governor.

(Have questions of your own about Grandparent Visitation? Click here to visit www.ThinkFoxtrot.com/public_calendars and book online for a consultation in our Huntsville or Guntersville offices or even a teleconference with one of Foxtrot’s Child Custody lawyers)

This last point was important for the 3 judges on the Alabama Court of Civil Appeals who voted to dismiss the claim. They seem to require that the statute specifically and expressly authorize a claim against a 3rd party non-parent custodian.

The majority’s interpretation is a little too restrictive. Rather than interpreting the statute to establish Grandparent Visitation as a thing, generally, and then identify the limited Constitutional circumstances in which it exists, the Alabama Court of Civil Appeals has come to a strained conclusion which slightly more clear but even more nonsensical than baseball’s infield fly rule. The Court has jumped through rhetorical hoops to construe the statue in such a way as to protect rights far less fundamental than the parents’ upon whose rights the Grandparent Visitation statute actually does infringe.

The dissenters, and in particular Judge Scott Donaldson, get it right. Even if we do need to know “who’s on first,” a grandparent with standing to file a claim, we don’t need to know “what’s on second” other than that the Defendant(s) in a Grandparent Visitation claim is the individual(s) currently exercising Custody of the child.

“Three-two” decisions of intermediate Appellate Courts, such as the Alabama Court of Civil Appeals operate on thin ice and are a signal to litigants that they will have at least a puncher’s chance at getting their case heard and overturned by the Supreme Court of Alabama so it is possible the current limitations on Grandparent Visitation may be as short-lived as the final resolution of this very case. However, there’s another 800-pound Trash Panda that will likely have their say, either way, because…

Nobody, and I mean nobody, loves Grandparent Visitation like your Alabama Legislature, a body I’m sure made up of several grandparents, themselves, as well as elected officials who tend to support issues ranking favorable among elderly Alabamians in an effort to garner support among an active voting demographic. Previous versions of the Grandparent Visitation statute have been held to be unconstitutional and violative of parents’ fundamental rights, but our Legislature has consistently and quickly tweaked the language of the statute and, as of this writing, successfully gotten Grandparent Visitation rights back on the books. 

(Note: Alabamians and trial court Judges are bound by a statute until it is expressly overruled or limited by an Appellate Court, as here. In theory, the Legislature could pass the exact same law previously overruled by the Courts and the “new” law would be enforceable pending further Appellate Court action. The Legislature’s modifications of each version of the Grandparent Visitation statute reflect an effort, good faith or otherwise, to address previous concerns of the Courts and find a version that “sticks.” 

The current version of Alabama’s Grandparent Visitation statute was signed into law on May 11th, 2016, and became effective on August 1st, 2016.)

You can read the Court’s decision here and review other Opinions of the Appellate Courts at https://judicial.alabama.gov/Appellate/Index.

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This article contains general information and should not be construed as legal advice for you and or your unique situation. If you would like to speak more about how you, as a Committed Parent or Caring Relative, can be more effective in your Child Custody case, please visit www.ThinkFoxtrot.com/public_calendars/ to schedule your initial consultation at one of our offices. ~SW, Foxtrot