The Alabama Legislature and appellate courts have been wrestling with the notion of grandparent visitation for several years. Last week, the Alabama Court of Civil Appeals struck down the latest version of the Alabama Grandparent’s Visitation Act, Ala. Code (1975) § 30-3-4.1 as unconstitutional in Weldon v. Ballow, (Ala. 2140471, October 30, 2015).
The result is that once again, Alabama grandparents cannot ask a court to require fit parents to allow grandparents to have visitation with their grandchildren. The court stated in the conclusion of its opinion:
For millennia, Western tradition has conferred custody of children upon their parents upon the theory that divine providence and the forces of nature delivered the child to those whose shared kinship with the child would instinctively lead them above all others to altruistically protect and raise the child. That theory has passed into modern law, which presumes that a custodial parent is fit and acts in the best interests of his or her child.
Based on that longstanding tradition, a custodial parent has a fundamental right to decide how grandparent visitation serves the best interests of his or her child. An Alabama court may not deprive a custodial parent of that fundamental right based on its own determination of the best interests of the child. [the Grandparents Visitation Act] deprives custodial parents of due process by impermissibly authorizing unconstitutional judicial review of parental decisions regarding grandparent visitation based on the best interests of the child. Thus, that subsection, and by extension the entirety of the [Grandparents Visitation Act], is facially unconstitutional.
Weldon v. Ballow, at *42-43.
The court reiterated the idea that the “government cannot override a fit parent’s choices for his or her children merely because the government thinks it can make a ‘better decision’ than the parent as to what is in the child’s ‘best interests.’” Weldon v. Ballow, at *17.
With this latest decision, Grandparent Visitation is no longer an option in Alabama. The Legislature has acted often on this issue in recent years, however, passing legislation in 1999, 2003, and two separate acts in 2011. A good summary of the law prior to the Weldon v. Ballow decision, authored by Huntsville attorney Susan C. Conlon, can be found here.
For now, we will have to wait and see whether the legislature will act to resurrect the idea of grandparent visitation once again.