Ex parte Bronstein
| Decision Date | 06 May 1983 |
| Citation | 434 So.2d 780 |
| Parties | Ex parte Mary Murphy BRONSTEIN and Alvin C. Bronstein. (Re John MURPHY and Nancy Murphy v. Mary Murphy BRONSTEIN and Alvin C. Bronstein). 82-152. |
| Court | Alabama Supreme Court |
J. Russell Gibson, III of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for petitioners.
Windell C. Owens, Monroeville, for respondents.
The issue presented on appeal is whether paternal grandparents who desire to visit their grandchildren may invoke the jurisdiction of the court to obtain visitation rights when the children's natural mother has subsequently remarried and the natural father has consented to the stepfather's adoption of the children. The facts of this case are amply set forth in the decision of the Court of Civil Appeals in Murphy v. Bronstein, 434 So.2d 778 (Ala.Civ.App.1982) and we need not repeat them here. The issue presented is one of first impression before this Court; we reverse the judgment of the Court of Civil Appeals.
Adoption is not merely an arrangement between the natural and adoptive parents, but is a status created by the state acting as parens patriae, the sovereign parent; therefore the exercise of sovereign power in adoption curtails the fundamental rights of the natural parent. Davis v. Turner, 337 So.2d 355, 360 (Ala.Civ.App.1976), cert. denied, 337 So.2d 362 (Ala.1976). The effect of a final order of adoption is explained in Code 1975, § 26-10-5(b) as follows:
The law is unequivocal. It mandates that upon entry of a final order of adoption, the natural parent is "divested of all legal rights and obligations" and the child is freed from all corresponding obligations of obedience to such parent. With the overall policy of the adoption statute being to treat adopted children in all respects as natural children, McCaleb v. Brown, 344 So.2d 485, 487 (Ala.1977), in all logic, this abrogation of all legal relationships and rights would likewise apply to the grandparents of the adopted child.
The appellants assert that the case of Futral v. Henry, 45 Ala.App. 214, 228 So.2d 827 (Ala.1969), should be controlling of the issues in this case. The Court of Civil Appeals in dictum in Futral stated that it agreed with the finding and relief granted by the trial court decree which granted the paternal grandparents the right to visit their grandchild who, following the death of his natural father and the remarriage of his natural mother, had been adopted by his stepfather. The case was reversed on other grounds, however.
This Court was not requested to review Futral and we are not convinced that the dictum of Futral should be adopted as the law of this case. Nor do we find the cases cited by the Court of Civil Appeals in its opinion particularly applicable here, because this case is not one involving the custody only of the grandchildren, but one in which the child has been adopted. The cases cited by the Court of Civil Appeals deal almost exclusively with a court's discretion during custody proceedings. These custody cases contain some persuasive principles, but do not deal with the legal issue presented in this case.
Under common law principles, grandparents lacked any legal right to visitation and communication with their grandchildren if such visitation was forbidden by the parents. Judge Holmes, in his special concurrence with the opinion of the Court of Civil Appeals, points this out. Indeed, the parents' obligation to allow such visitation was a moral, not a legal obligation. See generally, Annot., 90 A.L.R.3d 322 (1979); see also 59 Am.Jur.2d, Parent and Child, § 92 (1971). The Court of Civil Appeals grounds its decision to grant the grandparents a right to be heard on the ground that the best interests of the child is a paramount consideration in custody cases, and holds that the same principle should apply in this case in which the grandchild has been adopted. The Court of Civil Appeals opines that in 1980, the legislature enacted Act No. 80-327, codified at § 30-3-3, which provides that "[t]he presiding judge in a divorce case involving custody of children, may award, at his discretion, visitation rights to the grandparents of such children."
We must respectfully disagree with the learned judges on the Court of Civil Appeals, because the language of Code § 30-3-3 makes clear that any such grant of visitation rights to grandparents is purely discretionary with the trial court, and may be exercised only in instances when the court is considering custody matters in a divorce case, and finds that conditions are such that it is appropriate to allow the grandparents the privilege of visitation. As we construe this statute, grandparents are not given a legal right of visitation, but only a right to request that the court, at the time the divorce case is pending, to grant them the privilege of visitation.
We now consider what other jurisdictions have done when faced with this question. In the Matter of the Adoption of Gardiner, 287 N.W.2d 555 (Iowa 1980), the Iowa Supreme Court held that an adoptive court had no authority to grant visitation rights to grandparents. It advanced two policy reasons for denying grandparent visitation: (1) that grandparent visitation, when against the wishes of the adoptive parents, would never be in the best interest of the child; and (2) that visitation rights of the grandparents are derivative of the rights of biological parents and therefore, when an adoption decree terminates parental rights, the rights of the grandparent are also terminated. 287 N.W.2d at 558. In another case, Browning v. Tarwater, 215 Kan. 501, 524 P.2d 1135 (1974), the Kansas Supreme Court, ruling that the statutory grant of visitation rights to grandparents was not intended to have application after a child to whom a grandparent was given visitation rights is adopted by a stepparent, stated:
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