Written by: Brittany Mercer
Member, The American Journal of Trial Advocacy
Grandparents. For most, the noun brings fond childhood memories of time well spent filled with laughter and love. This loving relationship between grandparent and grandchild generally stems from a healthy relationship between the parent and grandparent. What happens when this is not the case? What happens when a relationship is created between grandparent and grandchild and that bond is suddenly severed?
Parents’ Fundamental Right to Raise their Children
The Supreme Court has recognized that parents have a fundamental right to control the upbringing of their children. This fundamental right includes the right to decide if the child will attend public or private school, the right to exempt their child from a mandatory school attendance law on the basis of free exercise of religion, and even a right to commit their child to an institution without a hearing. Thus, the Court has provided strong deference to parents while weighing competing state claims against those of the parents.
Parents’ Fundamental Right v. Grandparents’ Statutory Right
Today, all fifty states have laws that provide rights to grandparents. How do courts reconcile parents’ constitutionally-protected fundamental right to control the associations of their child with recent state laws protecting grandparents’ rights? The Supreme Court addressed this in Troxel v. Granville when it struck down Washington’s state law providing the broad right to petition a court for visitation to “any person,” so long as the “best interests of the child” standard was met. The plurality opinion in Troxel began by acknowledging “[t]he liberty interest at issue in this case—the interest of the parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.” The Court noted that there were no allegations that the mother was unfit, nor had she ended all visits. As a result, the Court held “that the visitation order in this case was an unconstitutional infringement on Granville’s fundamental right to make decisions concerning the care, custody, and control of her two daughters.”
Alabama’s Grandparent Visitation Statute
In 2011, the Alabama Supreme Court deemed Alabama’s grandparent visitation law unconstitutional. Similar to the Washington State law that granted broad rights to anyone meeting “the best interest of the child” standard, the Alabama statute also authorized a court to grant visitation to anyone meeting the same standard. The court found the statute disregarded a parents’ fundamental right to control the upbringing of their children. Five years later in 2016, the legislature passed, and Governor Robert Bentley signed into law, another law providing grandparents the right to petition Alabama courts for visitation.
The new law limits the circumstances in which grandparents may file a petition. The law provides that a grandparent may only file a petition if one of the following circumstances exists: (1) the parents have filed for divorce or legal separation or if the marital relationship is severed by death; (2) if a child was born out of wedlock and petitioner is maternal grandparent or paternal grandparent (and legal paternity has been established); or (3) if the rights of one parent has been terminated or a pending action to terminate has been filed.
Notably present in this new law is a rebuttable presumption that a fit parent’s decision to deny or limit visitation is in the best interests of the child. To overcome this presumption, a grandparent must provide clear and convincing evidence that he or she has a “significant and viable relationship” with the grandchild and that visitation would be in the best interests of the child. The statute further outlines specific facts that establish a significant and viable relationship. For example, the law implements a test requiring the child to have resided with the grandparent for a minimum of six consecutive months within three years of the filing of the visitation petition. Alternatively, the grandparent may show that he or she was the caregiver on a regular basis for at least six months or that the grandparent had frequent or regular contact with the child for at least twelve consecutive months that resulted in a “strong and meaningful relationship.” The law also allows facts to be presented that would show loss of the grandparent/grandchild relationship would cause harm to the child.
While this new law does a better job than its predecessor in recognizing parents’ fundamental right to control the upbringing of their children, whether the law will pass constitutional muster is yet to be determined. In December 2016, a Jefferson County case, the first challenging the new law, provided no indication as to how judges might rule on the issue because the judge in the case, sua sponte, sealed the case. An appeal in the case has been filed. Whether Alabama’s new grandparent visitation law will survive a constitutional attack remains to be seen, as the issue makes its way through Alabama’s judicial system.
 Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (finding unconstitutional a state law that prohibited teaching any language other than English in public schools violated the rights of parents to make decision for their children).
 Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925).
 Wisconsin v. Yoder, 406 U.S. 205, 234 (1972).
 Parham v. J.R. Parham, 442 U.S. 584, 607 (1979) (holding a child may be committed by a parent with an evaluation by a doctor or neutral fact-finder).
 530 U.S. 57 (2000).
 Id. at 58.
 Id. at 65.
 Id. at 68.
 Id. at 72.
 See Ex parte E.R.G., 73 So.3d 634, 646 (Ala. 2011) (holding the act violated the due process rights of parents because there was no presumption in favor of the parents and no requirement of a showing of a compelling state interest in awarding the grandparents visitation).
 Wash. Code Rev § 26.10.160 (2016).
 E.R.G., 73 So.3d at 647.
 Id. at 637.
 Ala. Code § 30-3-4.2 (2016).
 Ala. Code § 30-3-4.2 (b) (2016).
 Ala. Code § 30-3-4.2 (c)(1) (2016).
 Ala. Code § 30-3-4.2 (c)(2) (2016).
 Ala. Code § 30-3-4.2 (d)(1)(a) (2016).
 Ala. Code § 30-3-4.3(d)(1)(b) & (c) (2016).
 Ala. Code § 30-3-4.3 (d)(2) (2016).
 Ivana Hrynkiw, Alabama Grandparents case sealed; final decision unknown, AL.com, (Dec. 6, 2016), http://www.al.com/news/index.ssf/2016/12/alabama_grandparents_visitatio.html.