Although there are limited rights to visitation of grandparents, there are certain conditions that can be met that will permit visitation. An experienced Huntsville divorce lawyer can help advise you on whether a grandparent can petition the court for visitation rights and be successful. The grandparent visitation statute is established in AL Code § 30-3-4.2 (2016), where it states that visitation of a grandparent can be granted if the grandparent can prove that not permitting it would cause harm to their grandchild.
Harm in this case is defined as “a finding by the court, by clear and convincing evidence, that without court-ordered visitation by the grandparent, the child’s emotional, mental, or physical well-being has been, could reasonably be, or would be jeopardized.” This can be a difficult standard to prove, but not impossible.
How AL Code § 30-3-4.2 (2016) Applies
As mentioned above, harm, as defined by AL Code § 30-3-4.2 is an important determinant for visitation rights. To that end, grandparents are able to file an action in court where their grandchild resides or they can file a motion to intervene with any state court before issues of custody arise in order to establish reasonable visitation rights. It is important to note that certain conditions apply:
1. An action for a divorce or legal separation has been filed by the parents, or the marriage has been severed by death or divorce.
2. A child has been born out of wedlock and the petitioner is a maternal grandparent of the child.
3. The child was born out of wedlock, the petitioner is a paternal grandparent of the child, and paternity has been legally established.
4. An action to terminate the parental rights of a parent or parents has been filed or the parental rights of a parent has been terminated by court order; provided, however, the right of the grandparent to seek visitation terminates if the court approves a petition for adoption by an adoptive parent, unless the visitation rights are allowed pursuant to Section 26-10A-30.
If visitation rights are challenged, or rebutted, the petitioning grandparent can argue that they have a significant and viable relationship with the child. To establish a significant and viable relationship to the court, they must demonstrate evidence of the following kind:
1. The child lived with the petitioning grandparent for at least six consecutive months either with or without a parent within the three years prior to filing the petition.
2. The child lived with the grandparent as a caretaker on a regular basis for at least six consecutive months within the three years prior to filing the petition.
3. The petitioning grandparent has had frequent or regular contact with the child for at least twelve consecutive months that resulted in a strong and meaningful relationship with the child within the three years prior to filing the petition.
Alabama law states that “as a matter of public policy, this section (AL Code § 30-3-4.2 (2016)) recognizes the importance of family and the fundamental rights of parents and children.” But by making a path for grandparents to have a continued role in their grandchildren’s lives, a glimmer of hope remains.