August 01, 2011

Alabama Grandparent Visitation Act Ruled Unconstitutional

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Ex parte E.R.G., 2011 WL 2279206 (Ala.).

Alabama’s grandparent visitation statute violated constitutional rights of parents by not including a presumption favoring parents and requiring a compelling state interest when deciding grandparents’ visitation rights.

Grandparents sought visitation with their grandchildren under Alabama’s Grandparent Visitation Act. The children’s parents restricted and eventually terminated contact between the grandparents and children after family relations became strained.

Under the Act, grandparents may be awarded visitation whenever it is in the best interests of the child. In response to the grandparents’
petition for visitation, the parents argued the Act was unconstitutional on its face and as applied to them.

The trial court awarded the grandparents visitation rights, agreeing with the children’s guardian ad litem that continued alienation from the grandparents was not in the children’s best interests.

After the trial court denied a motion by the parents to set aside its judgment, the parents appealed to the state appellate court. The appellate court reversed and issued a judgment favoring the parents. It took issue with the trial court’s award of grandparent visitation over the parents’ objection and held that a grandparent seeking visitation under the Act must prove the child will be harmed if visitation is denied. While the court recognized the state’s interest in fostering relationships between grandparents and their grandchildren, it stressed that the state may not infringe on basic parental rights. If a parent objects to grandparent visitation, the court may only overrule that objection to prevent harm to the child.

The Supreme Court of Alabama granted certiorari and affirmed. The U.S. Supreme Court has long recognized the fundamental right of parents to direct the care, custody, and upbringing of their children. Interfering with that right requires courts to first make a finding of parental unfitness before moving on to decide that interfering with the parent’s rights is in the child’s best interests.

While state legislatures may grant grandparents a limited right to visit their grandchildren, statutes must recognize the fundamental rights of parents to raise their children in order to be constitutional. Alabama’s Act did not mention the parents’ rights, however. Rather, it instructed trial courts to determine if grandparent visitation “is in the child’s best interests.” The parent’s wishes were only considered as part of “other relevant factors” that the court should consider.

The state supreme court held the Act was unconstitutional in its entirety. It explained that the Act may only infringe on parental rights to protect a compelling state interest and that such an infringement must be narrowly tailored and use the least-restrictive means. Here, the Act focused only on the best interests of the child with little regard for the constitutional rights of the parents.

Although the court recognized the child’s best interests were important, it found they did not rise to the level of a compelling state interest on their own. Further, applying the best interests standard substituted the judge for the parent as the decision maker with no regard for the parents’ rights, also with no compelling interest.

Since the Act did not require a compelling state interest and there was no showing that applying the Act was the least-restrictive means to achieve a compelling state interest, the court found it violated parents’ basic rights.  Further, the Act’s failure to include a presumption favoring the parents when deciding visitation infringed on the constitutional rights of the parents to raise their children.