During its 2016 regular session, the Alabama legislature passed House Bill 334 regarding grandparent visitation in this state. This bill has been signed into law by Governor Robert Bentley and goes into effect on August 1, 2016. It repeals and replaces Alabama’s previous grandparent visitation law, parts of which had been deemed unconstitutional by the Alabama Supreme Court.
This new law allows a grandparent to petition for court ordered visitation with a grandchild. The issue of grandparent visitation often arises in family law cases where parents are battling over the custody of minor children. Oftentimes, grandparents wish to ensure their access to their grandchildren, in spite of which parent is ultimately awarded custody of the minor children.
A grandparent may now petition a court for reasonable visitation rights if any of the following circumstances exist:
(1) An action for a divorce or legal separation of the parents has been filed, or the marital relationship between the parents of the child has been severed by death or divorce; or
(2) The child was born out of wedlock and the petitioner is a maternal grandparent of the child; or
(3) The child was born out of wedlock, the petitioner is a paternal grandparent of
the child, and paternity has been legally established; or
(4) An action to terminate the parental rights of a parent or parents has been filed or the parental rights of a parent have been terminated by court order;
A presumption is created under the new law that a fit parent's decision to deny or limit visitation to the petitioning grandparent is in the best interest of the child. This is a key provision of the new law. In order to overcome this presumption, the petitioning grandparent must provide clear and convincing evidence to a court that he/she has a significant and viable relationship with the grandchild and that his/her visitation is in the best interest of the child. The new law sets forth specific facts that must be proven by the petitioning grandparent in this regard.
This new law recognizes the importance of family and the fundamental rights of parents and children. It aims to “balance the constitutional rights of parents and children by imposing an enhanced standard of review and consideration of the harm to a child caused by the parent's limitation or termination of a prior relationship of a child to his or her grandparent.”
It is anticipated that the Alabama Supreme Court will soon consider the constitutionality of this new law.