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Birmingham Bar Association Bulletin Fall 2016

Family LAw G. R. Fernambucq Grandparents’ Visitation – On Again As of May 3, 2016, we have yet another version (number 10) of the Grandparents’ Visitation Act (Act). It passed in the fi nal days of the 2016 General Session of the legislature. It became eff ective on August 1, 2016. Th e prior version found at §30-3-4.1 Code of Alabama (1975) was repealed. Th is version provides groundwork and guidance on what is required for grandparents to prove when pursuing visitation with grandchildren. By defi nition, a “grandparent” is the parent of a parent, whether the relationship is created biologically or by adoption. Prior case law has always determined that the Acts do not apply to great-grandparents. Th e Act allows a grandparent to fi le an original action for visitation, or fi le a motion to intervene in any action if: • an action for divorce or legal separation of the parents has been fi led, or the marital relationship between the parents of the child has been severed by death or divorce; • the child was born out of wedlock and the petitioner is a maternal grandparent of the child; • the child was born out of wedlock, the petitioner is a paternal grandparent of the child, and paternity has been legally established; or, • an action to terminate the parental rights of a parent or parents has been fi led or the parental rights of a parent have been terminated by court order. If an adoption has been approved, the right to seek visitation terminates unless visitation rights are allowed pursuant to §26-10A-30 Code of Alabama (1975) which pertains to an adoption by a family member. Th e Act includes a rebuttable presumption that a fi t parent’s decision to deny or limit visitation is in the best interest of the child. By doing so, the parent does not have the initial burden rebutting a presumption by presenting evidence to defend his or her decision to limit visitation. In this way, the Act falls in line with the United States Supreme Court decision of Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000). Troxel requires the court to recognize that a fi t parent has a superior right, constitutionally, to all others in making decisions regarding the raising of his or her children, including deciding who or who may not visit with the children, as articulated in Section 2 of the new Act. Th e Act provides what is necessary for the petitioner to prove to overcome the presumption. By clear and convincing evidence, the petitioner must prove: • that a signifi cant and viable relationship with the child has been established; and, • visitation with the petitioner is in the best interest of the child. To establish what is a “signifi cant, viable relationship,” the petitioner must show that the child resided with him or her for at least six (6) months (with or without the parent), or that he or she was a caregiver to the child on a regular basis for at least six (6) consecutive months, or he or she has had frequent, regular contact for at least twelve (12) consecutive months and a strong, meaningful relationship has been established. To meet the “best interest of the child” burden, the petitioner must show by clear and convincing evidence all of the following: • he or she has the capacity to give the child love, aff ection and guidance; 14 Birmingham Bar Association


Birmingham Bar Association Bulletin Fall 2016
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