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Court of Civil Appeals of Alabama
January 29, 2002, Released
[*181] THOMPSON, Judge
L.B.S. (the "mother") and L.M.S. (the "father") were divorced on March 22, 2000. The couple had two children, N.L.S. and N.T.S (the "children"). Under the terms of the divorce judgment, the mother was awarded custody of the children. On June 13, 2000, following the divorce of the mother and the father, the father's parents, L.S. and L.S. (the "grandparents"), filed a motion to intervene and petitioned for visitation rights with the children pursuant to § 30-3-4.1, Ala. Code 1975. The grandparents' motion to intervene was granted on June 15, 2000. The mother then moved to dismiss the grandparents' petition for visitation and to strike the trial court's order allowing the grandparents to intervene. Following a hearing, the trial court denied the mother's motions. The mother filed an answer challenging the constitutionality [**2] of § 30-3-4.1, Ala. Code 1975, and served a notice of her constitutional challenge on the attorney general, pursuant to § 6-6-227, Ala. Code 1975. In response, the attorney general, acting on behalf of the State of Alabama (hereinafter the "State"), submitted a brief in support of the constitutionality of the statute.
On March 15, 2001, the trial court entered a judgment declaring § 30-3-4.1, Ala. Code 1975, facially unconstitutional and denying the grandparents' petition for visitation. In its judgment, the trial court, relying primarily on the recent United States Supreme Court case of Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), determined that § 30-3-4.1(e), Ala. Code 1975 (that part of the statute establishing a rebuttable presumption in favor of grandparent visitation), and § 30-3-4.1(d) (listing the factors for determining grandparent visitation), were unconstitutional because, it reasoned, those provisions failed to afford special weight to a parent's own determination regarding visitation. According to the trial court, without those two provisions, [**3] the remainder of § 30-3-4.1, Ala. Code 1975, failed to provide any standard upon which a court could rely in determining when and under what circumstances to award visitation. Therefore, the trial court concluded that the entire statute was unconstitutional on its face. Only the State appealed.
The United States Supreme Court, in Troxel v. Granville, stated that, ] with regard to child-visitation rights, parents have a fundamental right "to make decisions concerning the care, custody, and control" of their children, and that such a right is protected by the Due Process Clause of the United States Constitution. Troxel v. Granville, 530 U.S. at 75. [*182] Troxel involved a Washington statute that permitted "any person" to file at "any time" a petition for visitation rights; the statute allowed the court to grant the petition whenever that visitation might serve the best interest of the child. Troxel, 530 U.S. at 60. The petitioners in Troxel were the paternal grandparents of two illegitimate children. They filed a petition seeking visitation rights with the children; the mother opposed the petition. 1 Troxel, 530 U.S. at 60. [**4] The trial court granted visitation to the grandparents; the mother appealed. The Washington Supreme Court held that although the grandparents did have standing to petition for visitation, the statute providing for that visitation unconstitutionally infringed on the parents' fundamental right to rear their children. ] According to the Washington Supreme Court, the United States Constitution prohibits the State from interfering with a parent's fundamental right to parent, absent some harm or potential harm to the child. In addition, the court held that the Washington grandparent-visitation statute was overly broad. In re Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998). 2
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
826 So. 2d 178 *; 2002 Ala. Civ. App. LEXIS 67 **
Ex parte State of Alabama; (In re: L.B.S. v. L.M.S.; and L.S. and L.S., intervenors)
Subsequent History: [**1] Second Correction January 30, 2003. As Corrected April 26, 2002. Released for Publication August 22, 2002.
Prior History: Appeal from DeKalb Circuit Court. (DR-99-506.01).
visitation, grandparent, grandparent visitation, custody, clear and convincing evidence, fundamental rights, best interests of the child, trial court, grandparent-visitation, invalid, best interest, provisions, cases, circumstances, visitation rights, fit parent, make a decision, parental rights, minor child, limitations, courts, parental authority, detrimental, remainder, rear, compelling state interest, rebuttable presumption, substantial harm, parens patriae, termination
Constitutional Law, Fundamental Rights, Procedural Due Process, General Overview, Family Law, Parental Duties & Rights, Duties, Care & Control of Children, Child Custody, Visitation, Visitation Awards, Standards, Best Interests of Child, Governments, Legislation, Overbreadth, Third Parties, Grandparent Visitation, Business & Corporate Compliance, Labor & Employment Law, Wage & Hour Laws, Child Labor, Police Powers, Marital Termination & Spousal Support, Dissolution & Divorce, Transportation Law, Private Vehicles, Bicycles, Termination of Rights, Case or Controversy, Constitutionality of Legislation, Interpretation, Courts, Authority to Adjudicate, Enactment, Civil Procedure, Appeals, Standards of Review, De Novo Review, Evidence, Inferences & Presumptions, Presumptions, Rebuttal of Presumptions, Inferences & Presumptions, Judicial Precedent, Severability, Visitation Enforcement