Appeal
from Talladega Circuit Court (DR-20-900300)
THOMPSON, PRESIDING JUDGE
On
November 13, 2020, Jane Adkins ("the paternal
grandmother") filed in the Talladega Circuit Court
("the trial court") a petition for an award of
grandparent visitation with her granddaughter ("the
child"), who was born in 2006 of the marriage of Joshua
East ("the father") and
Ivy East ("the mother"). The record indicates that
the mother and the father had divorced in February 2020 and
that the mother had been awarded sole custody of the child
subject to the father's rights of visitation. The mother
and the father each filed an answer opposing the paternal
grandmother's petition.
The
trial court conducted a pendente lite hearing on December 21
2020, at which it received ore tenus evidence. On December
21, 2020, the trial court entered an order finding that the
paternal grandmother "had met her burden of proof in
establishing grandparent-visitation privileges pursuant to
former § 30-4-4.1, Ala. Code 1975, which has been
repealed and replaced by § 30-4-4.2, Ala. Code 1975, and
awarding the paternal grandmother pendente lite visitation
with the child.
On May
17, 2021, the trial court entered a judgment finding that the
parties had stipulated that the paternal grandmother had
"met her burden under § 30-3-4.1," and it
awarded the paternal grandmother scheduled visitation. The
mother filed a timely postjudgment motion, and the trial
court conducted a hearing on that motion. On September 1
2021, the trial court entered an order denying the
mother's postjudgment motion. The mother filed a timely
notice of appeal on September 28, 2021.
As an
initial matter, we note that, in her petition seeking an
award of grandparent visitation, the paternal grandmother
improperly cited former § 30-3-4.1. However, former
§ 30-3-4.1 been repealed and replaced by §
30-3-4.2, which became effective August 1, 2016. See
Ala. Acts 2016, Act No. 2016-362. Accordingly, §
30-3-4.2 is applicable to this matter.
Section
30-3-4.2 provides, in relevant part:
"(a) For the purposes of this section, the following
words have the following meanings:
"(1) Grandparent. The parent of a parent, whether the
relationship is created biologically or by adoption.
"(2) Harm. 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.
"….
"(c)(1) There is a rebuttable presumption that a fit
parent's decision to deny or limit visitation to the
petitioner is in the best interest of the child.
"(2) To rebut the presumption, the petitioner shall
prove by clear and convincing evidence, both of the
following:
"a. The petitioner has established a significant and
viable relationship with the child
for whom he or she is requesting visitation.
"b. Visitation with the petitioner is in the best
interest of the child.
"(d) To establish a significant and viable
relationship with the child, the petitioner shall prove by
clear and convincing evidence any of the following:
"(1)a. The child resided with the petitioner for at
least six consecutive months with or without a parent
present within the three years preceding the filing of the
petition.
"b. The petitioner was the caregiver to the child on a
regular basis for at least six consecutive months within
the three years preceding the filing of the petition.
"c. The petitioner had frequent or regular contact
with the child for at least 12 consecutive months that
resulted in a strong and meaningful relationship with the
child within the three years preceding the filing of the
petition.
"(2) Any other facts that establish the loss of the
relationship between the petitioner and the child is likely
to harm the child.
"(e) To establish that visitation with the petitioner
is in the best interest of the child, the petitioner shall
prove by clear and convincing evidence all of the
following:
"(1) The petitioner has the capacity to give the child
love, affection, and guidance.
"(2) The loss of an opportunity to maintain a
significant and viable relationship between the petitioner
and the child has caused or is reasonably likely to cause
harm to the child.
"(3) The petitioner is willing to cooperate with the
parent or parents if visitation with the child is allowed.
"(f) The court shall make specific written findings of
fact in support of its rulings."
This court has explained that,
"[i]n [enacting] § 30-3-4.2, the legislature
added, among other things, a specification that grandparent
visitation may not be awarded absent '[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.'
§ 30-3-4.2(a)(2)."
Ex parte R.D., 313 So.3d 1119, 1124 (Ala. Civ. App.
2020).
The
mother asserts a number of arguments on appeal. We conclude
that the...
