Recently, the Alabama Court of Appeals struck down a law that grants legal rights to grandparents who want to visit their grandchildren. The law, known as the Alabama Grandparent Visitation Act, allows grandparents to go to court to seek visitation with grandchildren even if the parents don’t approve, and is an amended version of a previous law that was struck down as unconstitutional on similar grounds in 2011.
In the underlying Autauga County case, a grandmother went to court seeking visitation with two of her grandchildren despite objection by the children’s mother. The Court ruled that the Grandparents Visitation Act is unconstitutional because it violates the rights of parents to direct the upbringing of their children. The Court noted that the Constitution provides heightened protection against government interference with certain fundamental rights and liberty interests such as the rights of parents to control the care and custody of their children in all aspects of their lives, including visitation with grandparents.
The Alabama Supreme Court struck a similar law down in 2011in its decision in the case Ex parte E.R.G. v. D.W.G. In that case the Court held that grandparents have no “inherent” rights to visitation with their grandchildren. In order for a grandparent visitation law to be constitutional, it must recognize the fundamental presumption in favor of the rights of the parents. The Alabama Grandparent Visitation Act, the court noted, makes no mention of the fundamental right of parents. Instead, it instructs the court to determine if visitation by the grandparent is in the “best interests” of the child. According to the law, the wishes of any parent who is living are merely among a long list of factors the court should consider. The court finally stated that, because a fit parent’s decision is protected by the U.S. Constitution, the wishes of the parent are always superior, not just a factor to be given consideration, making Alabama Grandparents Visitation Law unconstitutional.
Under the rulings of the Alabama Supreme Court and Court of Appeals, it would appear that grandparents in Alabama do not currently have any rights to court-ordered visitation of their grandchildren. While the Alabama legislature appears to recognize the special relationship between a grandparent and grandchild, our highest courts’ failures to acknowledge this inherent bond is a travesty of justice, not only for many grandparents in our State, but for many children as well who may never have the opportunity to know that special, unconditional love that a grandparent gives. Hopefully, the legislature will amend the current law in an attempt to make Grandparent Visitation Laws constitutional.