Grandparent’s Rights and Child Custody/Visitation
Grandparents play an important role in the lives of their grandchildren. Grandparents are perhaps best known for spoiling grandchildren, but they also provide helpful wisdom, guidance, and direction that is obtained from extensive life experience. When a child’s parents get divorced or one of the parents dies, grandparents often take on a more central role. To ensure that they are legally able to remain involved in the lives of their grandchildren, grandparents may need to petition the court for visitation rights and in some cases, child custody.
Alabama Law and Grandparent’s Rights
In 2010, the Alabama legislature passed the Grandparent Visitation Act, giving grandparents the right to visit and maintain contact with their grandchildren. However, the courts have struck down major parts of the law as unconstitutional, and the end result has been an environment that restricts grandparent’s rights, particularly in cases in which the parents do not wish to have the grandparents in the lives of their children. The good news for grandparents is that the law still allows for their rights to be established under certain circumstances.
When Can Grandparents ask for Visitation?
Grandparents may obtain rights to visit their grandchildren if the grandparent clearly establishes his/her relationship with the grandchild (either biologically or by adoption) and presents clear and convincing evidence that granting visitation is in the best interests of the child. A grandparent may file for visitation rights if any of the following circumstances exist:
- The child’s parents have been separated or divorced;
- Either or both of the child’s parents have been deceased;
- The child was born out of wedlock and the petitioner is the maternal grandparent of the child, or the petitioner is the paternal grandparent of the child and paternity has been established;
- The child is living with both married biological or adopted parents and either or both parents have prohibited the grandparents from having a relationship with the child;
- There is a pending action to terminate parental rights.
Alabama courts have shown deference to parents over grandparents in these types of cases. For a grandparent to prevail with their petition, they must show extensive proof that denying visitation rights would cause harm to a child’s emotional, psychological, or physical well-being.
Some of the factors used by the court to decide if granting visitation is in the child’s best interests include:
- The willingness of the grandparents to encourage a close relationship between the child and his/her parents;
- The mental, emotional, and physical health of the child;
- Whether or not either parent has a history of domestic abuse toward the child;
- The strength of the current relationship between the grandparent and the child;
- The wishes of any living parents;
- The preferences of the child (depending on the child’s age and maturity);
- Any other specific factors that may be relevant to the case.
During a grandparent’s rights case, a Guardian Ad Litem (GAL) may be appointed by the court to represent the best interests of the child. The grandparent is usually the one responsible to pay for the appointment of the GAL, as long as it does not present a financial hardship. Cases like these can become quite complicated, and the outcome often rests on the strength of the arguments made by each side and their legal counsel.
When Can Grandparents Petition for Custody?
There are certain extreme cases in which a grandparent may be able to obtain custody of a grandchild in Alabama. These are usually cases in which the biological or adoptive parents are both deceased, have abandoned the child(ren), or are unfit parents. Examples of unfit parents may include parents who are mentally ill, are addicted to drugs, or are abusive to the child. These are very limited circumstances, however, and sufficient evidence must be shown to convince the court to grant primary custody to a grandparent.
Speak with a Knowledgeable Alabama Family Law Attorney
There are times when grandparents need to legally establish their right to be involved in the lives of their grandchildren. Unfortunately, Alabama courts are not always friendly to grandparents who petition for visitation or custody. Those in this situation need a skilled attorney in their corner aggressively advocating for their rights and interests.
At Smith & McGhee, PC, our family law attorneys have in-depth knowledge of grandparent’s rights and child custody/visitation, and what it takes to obtain a favorable outcome in these types of cases. For a consultation with one of our lawyers, contact us today at 334-708-3158 or send us a message through our online contact form. You may also stop by our office in Dothan.