The relationship between a grandparent and their grandchild is one that children will remember for the rest of their lives. Grandparents cherish and take pride in their grandchildren, and getting to spend time with them is a source of great joy. Unfortunately, family disturbances such as separation, divorce, or even the death of a parent can get in the way of these important relationships, creating grief for both the grandparent and their grandchildren.
At the Law Office of Ginger Poynter, we understand the dilemmas of grandparents when faced with separation from their grandchildren. In the state of Alabama, grandparents have specific rights, although they are much more difficult to obtain than in the past. For this reason, anyone who believes that their grandparents’ rights in Alabama are not being served needs the assistance of a skilled and experienced Alabama family law attorney.
Grandparents’ Rights in Alabama
Grandparents’ Rights in Alabama used to be governed by the Alabama Grandparents Visitation Act. Unfortunately, that act was struck down by the courts in 2010 as being unconstitutional.
The Court of Appeals struck down the law because it concluded that the Act violated the rights of parents to decide what is in the best interests of their children. Because other grandparents’ rights laws across the country have seen similar results, Alabama re-drafted the law to address those concerns, making it more difficult for grandparents to exercise their rights.
In May 2016 Alabama Governor Robert Bentley signed into law new legislation that is intended to safeguard the rights of grandparents in Alabama. Called HB334, the law recognizes the rights of parents to makes decisions for their children but also gives courts the ability to override those decisions for grandparents’ visitation purposes under some conditions.
The new bill places a strong burden of proof upon grandparents to show several things. The grandparents must prove that they had an existing and significant relationship with the child and that continuing visitation is in the best interests of the child.
Since the courts allow the parents the presumption that their decisions are in the best interest of the child, the petitioning grandparents have a duty to show, with clear and convincing evidence, that this is not the case.
First, grandparents must prove that they had a “significant and viable” relationship with the child before contact was terminated. The criteria for this includes:
- The child previously lived with the grandparents for a period of six months or longer,
- The grandparent acted as the grandchild’s caregiver for at least six months, or
- There was frequent contact between the grandparent and grandchild resulting in a strong relationship, with the contact lasting at least 12 months.
In all of these cases, the “contact” and relationship conditions must have occurred within three years of filing a petition for visitation.
Aside from proving contact, the grandparents must also show that the lack of contact or loss of the relationship “has caused or is likely to cause harm” to the child. This is not only quite subjective but difficult to prove. However, if there is trouble in the home or if the child is having difficulty in school, these could be used as convincing arguments in your case.
Proving a strong relationship is only one of the court’s requirements to establish grandparents’ rights in Alabama. The new law also sets forth the circumstances in which a petition for grandparents’ visitation can be filed. These include:
- The parents have filed an action for divorce or legal separation,
- One of the parents has abandoned their child,
- The marriage has been dissolved by divorce or the death of a parent,
- The child was born outside of marriage, and the petitioner is either the maternal or paternal grandparent, where the parents have legally established paternity, or
- The child’s parental rights are in legal jeopardy or have been terminated by court order.
In Alabama, if a child has been adopted, the grandparent’s rights are terminated. This is true unless the child is adopted by a stepparent or other relative. In this case, grandparents still have rights and can petition for visitation under this law.
When the courts review these cases, they consider the evidence presented by the grandparents, which challenges the parent’s right to make choices on behalf of the children. Other factors that the court will consider include the preferences of the children depending on their age, the willingness of the grandparent to encourage a positive relationship between the child and their parent, the physical and mental health of the children, the physical and mental health of the grandparents, and any evidence of abuse or domestic violence in the home.
Grandparents can file a petition for visitation together or separately, but each may only file once every 24 months if they lose the petition. If one grandparent files an individual petition and loses, however, the other grandparent can file a separate petition without having to wait 24 months.
Grandparents Seeking Custody
In some cases, grandparents seek more than visitation rights with their grandchildren. When grandparents believe that children would be better off in their custody rather than in the custody of their parents, the grandparents might take steps to pursue a custody arrangement.
If your grandchildren are in a situation that is either abusive or neglectful, the state’s child protective services may need to step in to enforce an order for their immediate removal from the home. Once the children are placed in protective custody, the courts will decide what is in the best interests of the children long-term.
Sometimes, grandparents are awarded either temporary or permanent custody of grandchildren depending on the parent’s particular circumstances. Often, a full custody award also comes with the option to legally adopt your grandchildren.
While Alabama law makes it difficult for grandparents to obtain visitation and custody of grandchildren, there are laws and safeguards in place to protect both yours and your grandchild’s rights. If you are a grandparent feeling isolated from your family, contact the compassionate and experienced Alabama family law attorney at the Law Office of Ginger Poynter at (251) 445-8313.