Ex Parte E.R.G. And D.W.G., 1090883

CourtSupreme Court of Alabama
Writing for the CourtPARKER
PartiesEx parte E.R.G. and D.W.G. In re: E.H.G. and C.L.G. v. E.R.G. and D.W.G.
Docket Number1090883
Decision Date10 June 2011

Ex parte E.R.G. and D.W.G.
In re: E.H.G. and C.L.G.
E.R.G. and D.W.G.



Dated: June 10, 2011
OCTOBER TERM, 2010-2011

Notice: This opinion is subject to formal revision before publication in the advance sneers of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in. order that corrections nay be made before the opinion is printed in Southern Reporter.


(Jefferson Circuit Court, CV-07-2224; Court of Civil Appeals, 2071061)

PARKER, Justice.

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The petitioners, E.R.G. and D.W.G., grandparents of minor children, challenge the decision of the Court of Civil Appeals, which, among other things, upheld § 30-3-4.1, Ala. Code 1975, the Alabama Grandparent Visitation Act ("the Act"), against a constitutional challenge by E.H.G. and C.L.G., the parents of the minor children.1 E.H.G. v. E.R.G., [Ms. 2071061 , March 12, 2010] __ So. 3d __ (Ala. Civ. App. 2010). We affirm the judgment of the Court of Civil Appeals, but we do so on a rationale different from the rationale given by that court. Because the Act authorizes a court to award visitation to a grandparent whenever doing so "is in the best interests of the minor child," potentially overriding a parent's decision to deny the grandparent such visitation, without regard for the fundamental right of a fit parent to direct the upbringing of his or her child, we hold that the Act is unconstitutional.


This case arises out of a dispute between the parents and the grandparents of minor children. At one time, E.R.G. and

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D.W.G. ("the grandparents") and E.H.G. and C.L.G. ("the parents") had a very close relationship, and the grandparents participated in the lives of both the parents and the minor children. The failure of a business shared by the father and the grandfather caused financial difficulties for both families; family relationships subsequently disintegrated. The parents first restricted, and eventually terminated, the grandparents' contact with the grandchildren.

Desirous of maintaining their relationship with their grandchildren, the grandparents petitioned the Jefferson Circuit Court for visitation under the Act. The parents argued in their response to the grandparents' petition that the Act was unconstitutional both on its face and as it applied to them:

"The subject statute is constitutionally infirm because it fails to expressly provide that the parents' decision is presumed to be in the best interest of the children; it violates due process by failing to require a showing of harm to the children as a condition precedent to granting visitation; it gives grandparents a cause of action regardless [of] whether the parents' refusal of visitation is []reasonable or unreasonable, and the State has no compelling interest in establishing a cause of action for a reasonable parental denial of grandparent visitation and there is no rational relationship between the burden of such provision and any public goal."

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Because the parents raised a challenge to the constitutionality of a statute, the attorney general was served. The attorney general waived further participation in the proceedings, and the trial court appointed a guardian ad litem to represent the interests of the grandchildren. The guardian at litem recommended granting the grandparents visitation with the grandchildren. Agreeing with the guardian ad litem that continued alienation from the grandparents was not in the best interest of the children, the trial court awarded the grandparents visitation rights. Its order stated:

"'The Court therefore, after having engaged the presumption in favor of the ... parents, is convinced, through clear and convincing evidence, that the [parents'] exertion of control over the lives of the children to the extent of isolating them from their relationship with their grandparents and alienating them from an otherwise loving relationship is not in the best interest of the said minor children.'"

E.H.G., ___ So. 3d at ___ (quoting the order of the trial court). The parents moved to set aside the judgment, which motion the trial court denied. The parents then appealed to the Court of Civil Appeals, and the trial court issued a stay of its visitation order pending appeal. That court reversed

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the judgment of the trial court and rendered a judgment in favor of the parents.

In its opinion, the Court of Civil Appeals went immediately to the constitutional question presented:

"In this appeal, this court considers whether a circuit court may constitutionally award grandparents visitation with their grandchildren over the objection of the children's fit, natural, custodial parents without providing clear and convincing evidence that the denial of such visitation would cause the children substantial harm.
"The Alabama Grandparent Visitation Act
"The Grandparent Visitation Act ('the Act'), Ala. Code 1975, § 30-3-4.1, provides, in pertinent part:
"'(b) Except as otherwise provided in this section, any grandparent may file an original action for visitation rights to a minor child if it is in the best interest of the minor child and one of the following conditions exist:
"'(5) When the child is living with both biological parents, who are still married to each other, whether or not there is a broken relationship between either or both parents of the minor and the grandparent and either or both parents have used their parental authority to

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prohibit a relationship between the child and the grandparent.
"'(d) Upon the filing of an original action ..., the court shall determine if visitation by the grandparent is in the best interests of the child. Visitation shall not be granted if the visitation would endanger the physical health of the child or impair the emotional development of the child. In determining the best interests of the child, the court shall consider the following:
"'(1) The willingness of the grandparent or grandparents to encourage a close relationship between the child and the parent or parents.
"'(2) The preference of the child, if the child is determined to be of sufficient maturity to express a preference.
"'(3) The mental and physical health of the child.
"'(4) The mental and physical health of the grandparent or grandparents.
"'(5) Evidence of domestic violence inflicted by one parent upon the other parent or the child. If the court determines that evidence of domestic violence exists, visitation provisions shall be made in a manner protecting the child or

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children, parents, or grandparents from further abuse.
"'(6) Other relevant factors in the particular circumstances, including the wishes of any parent who is living.'"

E.H.G., ___ So. 3d at ___ (footnote omitted).

Although the Court of Civil Appeals correctly stated that "the Act does not expressly require a petitioning grandparent to prove that the denial of the requested visitation would cause harm to the child," __ So. 3d at ___, it went on to hold that, in accordance with the United States Constitution, petitioning grandparents must prove that the denial of the requested visitation would cause harm to the child.

In its discussion, the Court of Civil Appeals quoted from several authorities, including Justice Scalia's dissent in Troxel v. Granville, 530 U.S. 57 , 91 (2000) (Scalia, J. dissenting), that recognize that the right of parents to make decisions regarding a child's care, control, education, health, and religion, as well as with whom the child will associate, is a fundamental right that arises "as an inherent consequence of the parent-child relationship independent of any caselaw, statute, or constitutional provision." __ So. 3d

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at ___. Because a parent's right is fundamental, the Court of Civil Appeals held, a state must have a compelling interest before it can legislate away that right, and several states "have concluded that the only compelling interest justifying [grandparent-visitation statutes] is the prevention of harm to the child." __ So. 3d at ___. A best-interests-of-the-child standard alone is insufficient to justify infringing on the fundamental right of the parents. The Court of Civil Appeals noted that "a court cannot award grandparent visitation without clear and convincing evidence demonstrating that denial of the requested visitation would harm the child." __ So. 3d at ___. Thus, the Court of Civil Appeals held that a grandparent petitioning for visitation under the Act must prove that the child will be harmed if the visitation is denied before a trial court may impinge the fundamental parental right in question. It wrote:

"Recognizing that we are not bound by the plurality opinions in [Dodd v. Burleson, 932 So. 2d 912 (Ala. Civ. App. 2005) ('Dodd I')], [Dodd v. Burleson, 967 So. 2d 715 (Ala. Civ. App. 2007) ('Dodd II')] , and L.B.S. [v. L.M.S., 826 So. 2d 178 (Ala. Civ. App. 2002)], we hereby adopt the reasoning of Hawk [v. Hawk, 855 S.W.2d 573 (Tenn. 1993),] and the majority of cases from other jurisdictions by holding that a grandparent seeking visitation with a child over the objection of a fit,

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natural, custodial parent,

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