Dodd v. Burleson
| Decision Date | 16 December 2005 |
| Docket Number | 2040003. |
| Citation | 932 So.2d 912 |
| Parties | Michael DODD v. William BURLESON and Jeanette Burleson. |
| Court | Alabama Court of Civil Appeals |
Oliver J. Latour, Jr., Foley, for appellant.
M. Lionel Leathers of Hillis Leathers & Leathers, P.C., Winfield, for appellees.
In this appeal, we address, for the first time, the effect of the 2003 amendments to Ala.Code 1975, § 30-3-4.1, which governs actions to establish grandparental-visitation rights.
As the Alabama Supreme Court noted in Ex parte Bronstein, 434 So.2d 780, 782 (Ala.1983), at common law, a parent's obligation to allow visitation between his or her child and that child's grandparent was a moral obligation, not a legal one; thus, "grandparents lacked any legal right to visitation and communication with their grandchildren if such visitation was forbidden by the parents." In order to remedy the potential for injustice by a strict application of that legal principle, and in light of wider acceptance of the benefits to a child that customarily flow from that child's relationship with his or her grandparents, a number of states, including Alabama, enacted laws granting grandparents standing to seek visitation with their grandchildren in certain enumerated situations. Much of that history was summarized by Judge Thompson in his opinion for this court in Weathers v. Compton, 723 So.2d 1284 (Ala. Civ.App.1998):
`
723 So.2d at 1285-86. In 1999, § 30-3-4, Ala.Code 1975, was repealed and replaced with a new statute, § 30-3-4.1, Ala.Code 1975. Under § 30-3-4.1 as originally enacted, a judgment awarding grandparental-visitation rights was statutorily permissible in five instances:
"when one or both the child's parents ha[d] died; upon the dissolution of the child's parents' marriage; upon abandonment of the child by one or both of the parents; when the child is born to unmarried parents; and when one or both of the child's parents, who are still married, use[d his, her, or] their parental authority to prohibit a relationship between the grandparent and the child."
Richburg v. Richburg, 895 So.2d 311, 315 (Ala.Civ.App.2004). However, in enacting § 30-3-4.1, the Legislature initially retained the rebuttable presumption in favor of grandparent visitation that had appeared in the 1995 amendments to § 30-3-4. Based upon its breadth, one may well refer to the original version of § 30-3-4.1 as the statutory apex of grandparental-visitation rights under Alabama law.
However, legislative efforts to foster relationships between grandparents and grandchildren have not been universally acclaimed, and a number of parents have asserted that grandparental-visitation statutes such as those enacted in Alabama unconstitutionally infringe upon parental prerogatives. Although this court in 1986 rejected such an attack upon the constitutionality of the version of § 30-3-4, Ala. Code 1975, that was then in effect (see Cockrell v. Sittason, 500 So.2d 1119 (Ala. Civ.App.1986)), the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), invalidating a Washington third-party-visitation statute as applied, prompted this court, among others, to reexamine the constitutional questions raised by grandparental-visitation statutes. Although the Court issued no majority opinion in Troxel, "[e]ight Justices agreed that the Fourteenth Amendment [to the United States Constitution] protects a parent's right to raise his or her child without undue interference from government," while "[f]ive Justices agreed that a fit parent is accorded a presumption that the parent acts in the child's best interests," and "[f]our Justices ... agreed that `special factors' must `justify' the state's intrusion, and that one of those factors is a finding of parental unfitness." Linder v. Linder, 348 Ark. 322, 347, 72 S.W.3d 841, 855 (2002).
As the New Jersey Supreme Court noted in Moriarty v. Bradt, 177 N.J. 84, 109, 827 A.2d 203, 218 (2003), cert. denied, 540 U.S. 1177, 124 S.Ct. 1408, 158 L.Ed.2d 78 (2004), courts that have assessed the constitutional application of their states' grandparental-visitation statutes have typically "engaged in one of two modes of analysis: (1) interpreting the statutes to require satisfaction of a harm standard in order to overcome the presumption in favor of a fit parent's decision or (2) avoiding the articulation of any standard at all and analyzing the statutes on a case-by-case basis." Although "Troxel implied that either approach would be acceptable," id., certain members of this court, in wrestling with the question of the proper application of § 30-3-4.1 as originally enacted, have voiced support for a harm standard, as we note below. This case, however, squarely presents the question whether that standard should be held to have survived the Legislature's recent amendment of § 30-3-4.1.
In May 2004, William B. Burleson and Jeanette Burleson ("the grandparents"), who are the maternal grandparents of three children born to Diana Burleson Dodd ("the mother") and Michael Dodd ("the father"), filed a petition in the Marion Circuit Court seeking a pendente lite and permanent award of visitation rights with the children, the appointment of a guardian ad litem to represent the children's interests, and other appropriate relief. The grandparents alleged that the father had "made known his wishes to deny visitation rights" to the grandparents; they also averred that their visitation with the children would be in the children's best interests and would not endanger their physical or emotional health. The father answered the petition and averred that § 30-3-4.1 violated his due-process rights under the United States and Alabama Constitutions; however, he did not serve the Attorney General with a copy of his answer asserting that constitutional challenge. The grandparents then sought additional pendente lite relief upon learning that the father had moved from Marion County to Baldwin County with two of the three children.
The trial court then held an ore tenus proceeding over three separate days in June and August 2004. The evidence adduced at those hearings tended to indicate that the father had married the grandparents' daughter in 1985 and that that marriage had produced three children: an older daughter who is no longer a minor, a younger daughter who is now 16 years old, and a son who is now 7 years old. During the marriage, the father, the mother, and the children all lived in Marion County in close proximity to the grandparents. According to the daughters' testimony, the children spent a lot of time at the grandparents' residence. Specifically, in May 2001, the mother was diagnosed with breast cancer; during and after the surgical treatment of that cancer, the grandparents provided assistance in the care of the children. In October 2001, the father suffered severe injuries from a mishap involving the operation of a motorcycle; he was hospitalized for over a month and underwent physical therapy for several months thereafter, during which period the grandparents provided the bulk of the children's care.
In November 2002, the mother was again diagnosed as having cancer. However, unlike the mother's previous onset of cancer, surgical treatment was unavailable, and she died in February 2003. During the mother's final illness, relations between the father and the older daughter became strained; after the mother's death, the father began severing relationships with family friends and entered into a social relationship...
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Ex Parte E.R.G. And D.W.G.
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