Divorce is painful enough on parents, but sometimes divorces also have a devastating impact on grandparents and other relatives. The death of an adult child is always a terrible blow, and a subsequent separation from the children of that child can be devastating. For a grandparent, losing the right to see grandchildren can be overwhelming and quite simply unfair. If you are struggling to see grandchildren in cases such as these, a Birmingham divorce lawyer may be able to help.
Alabama has chosen to create a specific statute that protects grandparents’ rights. However, the law has some particular requirements. Let’s take a look at the new law, and three common examples of how it might apply.
Grandparents Visitation Statute
As a preliminary matter, the law is not implicated unless there is a dispute, meaning the law comes into play when a grandparent must actually petition a court for the right to see a grandchild. In such a situation, Section 30-3-4.2 of the Alabama Code provides that a grandparent is entitled to reasonable visitation with a grandchild, if the grandparent can prove that not allowing that visitation would be detrimental to the grandchild. This is called the “harm standard,” and is a tough standard to meet. There are four situations where the law actually applies:
- Marriage of the parents ended by divorce, or one of the parents has died
- Maternal grandparents of a child born out of wedlock
- Paternal grandparents of a child born out of wedlock (and paternity is proven)
- There is a pending action to terminate parental rights
Parents Refuse Visitation
Alabama generally follows the Supreme Court decision in Troxel v. Granville, where the court held that a parent has a constitutional right to decide whether to permit or restrict visitation. So, if two married parents do not wish for a grandparent to see the children, there is not a lot a court can do about it, except perhaps in extreme examples.
The law allows grandparents to petition for visitation when there is a divorce. This, of course, assumes that the parents disagree. Often, at least one parent agrees that the grandparents should have visitation, though petitions are more generally necessary when that parent is unable to facilitate visitation with the grandparents himself or herself.
One Deceased Parent
Another common example is similar to what happened in Troxel v. Granville. When one spouse dies, the surviving spouse might choose to limit or even prohibit the parents of the deceased spouse to visit the children. This situation is complicated, and if there was a sufficient relationship between these grandparents and the child, a court will entertain a petition for visitation.
Loss of Parental Rights
While it may not seem fair, a parent’s own termination of parental rights will be imputed to his or her own parents. Under the statute, the parent of a parent who lost parental rights through a court termination process will also not be able to petition for visitation. Therefore, a person who loses parental rights also loses visitation rights for his or her own parent.
Adoption Severs Grandparents’ Rights
Finally, when a child is adopted to someone outside of the family, grandparents will have their visitation rights terminated.
Questions About Grandparents’ Rights in an Alabama Divorce
If you are a grandparent, you may worry about how your own child’s divorce will affect your ability to maintain a strong and lasting relationship with the grandkids. Contact 5 Points Law Group to discuss your situation and find out if you may have options for protecting that relationship. We believe in caring, compassionate, and thorough representation. Do not keep worrying; find out your rights today.
When a Child Gets to Decide Where to Live After Divorce
Divorce is hard. A custody battle can be worse. Nothing can prepare a parent for watching his or her child have to make a painful decision like where to live after a divorce. Fortunately, this is partly why Alabama law does not put that sort of weight on a small child. In fact, children are never forced to make such statements. A child is rarely forced to comment on his or her preference if the child does not want to.
Furthermore, if requested, most judges will appoint a guardian ad litem to represent the child. This attorney’s role is different than most in that he or she is bound to advocate for the best interests of the child rather than simply to pursue the child’s preferences. Those preferences and concerns can be articulated them to the court through the attorney, though a duty of confidentiality applies as with all clients.
Alabama’s Best Interests of the Child Standard as Applied to Joint Custody Requests
Under Section 30-3-152 of the Alabama Family Law Code, the court must consider a set of statutory factors when reaching a decision about joint custody. These factors include:
- How easily the parties get along and agree on things
- How well the parties are able to cooperate and make joint decisions
- Whether and to what extent each parent works to encourage the child to maintain a healthy and loving relationship with the other parent
- Evidence of past or present child abuse, neglect, domestic violence, or other harmful behavior by either parent (toward the child or each other)
- Where the parties actually reside in relation to how easy it would be to maintain joint custody arrangements
Age at Which Child’s Preference is Considered
In some states, like neighboring Georgia, the law sets a designated age at which a minor child’s consent or preference creates a presumption which results in children’s preferences being given great weight. Alabama, however, sets no specific statutory rule. Instead, the family court judge has wide discretion and must consider a child’s wishes, but is never bound by them. A few things that typically are considered in this decision are:
- Is the child mature enough to understand the consequences of his or her statements?
- Are the child’s wishes based on reasonable expectations and intentions?
- Has the child been promised anything or bribed to make statements?
- Are the child’s wishes clearly against his or her best interests?
While these can be tough to ascertain, experienced judges and guardians ad litem are usually quite effective at determining whether the child has legitimate reasons for his or her wishes. If reasonable and valid, those preferences will be considered along with all of the other factors.
How an Experienced Custody and Divorce Lawyer Can Make a Difference
It can be tempting to encourage a small child to state his or her preferences in order to “win” a custody dispute. Many people make the tragic mistake of pitting children against their spouses in a divorce. This type of intentional alienation is not good for the children, no matter how much parents may dislike each other.
Having a skilled and experienced family law attorney by your side can give you the confidence to make better choices. Sometimes it just helps to know you have someone to turn to for those everyday questions challenges and disputes that will invariably arise during a divorce. For help with your custody dispute or divorce, call 5 Points Law Group today.