E.H.G. v. E.R.G.

• Decision Date: 12 March 2010
• Docket Number: 2071061.
• Parties: E.H.G. and C.L.G. v. E.R.G. and D.W.G.
• Court: Alabama Court of Civil Appeals

73 So.3d 614

E.H.G. and C.L.G.

v.E.R.G. and D.W.G.

2071061.

Court of Civil Appeals of Alabama.

March 12, 2010.

Unconstitutional as Applied

Code 1975, § 30–3–4.1 Charles Cleveland, Birmingham; and Jonathan E. Lyerly, Birmingham, for appellants.

Anne Lamkin Durward and Shay N. Click of Massey, Stotser & Nichols, P.C., Birmingham, for appellees.Sharon E. Ficquette, chief legal counsel, and James E. Long, deputy atty. gen., Department of Human Resources, for appellees.PER CURIAM.

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,¹ 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 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 children, parents, or grandparents from further abuse.

“(6) Other relevant factors in the particular circumstances, including the wishes of any parent who is living.”

As construed by this court, in considering “the wishes of any parent who is living,” pursuant to § 30–3–4.1(d)(6), the deciding court must presume that the decision of a parent whether to allow grandparent visitation serves the best interest of a child and the court may award visitation only when the petitioning grandparent adduces clear and convincing evidence overcoming that presumption. See L.B.S. v. L.M.S., 826 So.2d 178 (Ala.Civ.App.2002) (plurality opinion authored by Thompson, J., with Pittman, J., concurring; Yates, P.J., and Murdock, J., concurring in the result; and Crawley, J., dissenting); see also J.W.J. v. P.K.R., 976 So.2d 1035, 1039–40 (Ala.Civ.App.2007).

Past Treatment of the Harm Standard

The Act provides that grandparent visitation should not be allowed when it would endanger the physical health or impair the emotional development of a child, but the Act does not expressly require a petitioning grandparent to prove that the denial of the requested visitation would cause harm to the child. In R.S.C. v. J.B.C., 812 So.2d 361 (Ala.Civ.App.2001) (plurality opinion), a case considering the constitutionality of § 30–3–4.1 as it existed before 2003, then Judge Murdock stated in the main opinion, which only Judge Pittman joined, that the state has a compelling interest in preventing harm to children and that the Act was unconstitutional because it did not require proof of “harm or potential harm to the child if such visitation [was] not allowed.” 812 So.2d at 372.

A year later, in L.B.S. v. L.M.S., supra, the court again addressed the constitutionality of the pre–2003 Act. Judge Thompson, in an opinion joined by Judge Pittman, wrote:

“[A] grandparent seeking visitation bears the burden of showing, by clear and convincing evidence, that the best interest of the child is served by awarding grandparent visitation. We note that harm or detriment is always a factor to be considered in a best-interest analysis.”

826 So.2d at 186. Judge Murdock concurred in the judgment of reversal only, stating:

“In general, to fall within the more limited class of cases to which I believe the statute constitutionally may be applied, there must be a threshold showing of substantial harm to the child if the requested visitation is not granted, and this showing must be made by clear and convincing evidence.”

826 So.2d at 188. Presiding Judge Yates concurred with Judge Murdock's reasoning. Id. As a result, a majority of the court agreed that the Act could be constitutionally applied in cases in which the petitioning grandparent proved by clear and convincing evidence that a denial of the requested visitation would cause substantial harm to the child, 826 So.2d at 186 n. 5. However, a majority of the court did not agree that grandparent visitation could be awarded solely upon a sufficient showing that the denial of visitation would result in substantial harm to the child. Id.; see also A.M.K. v. E.D., 826 So.2d 889 (Ala.Civ.App.2002) (adopting reasoning of L.B.S.). Nevertheless, in the next few opinions this court issued concerning the Act, the court reversed judgments awarding grandparent visitation, or affirmed judgments denying grandparent visitation, when the record did not disclose clear and convincing evidence demonstrating that the child would be substantially harmed if visitation was denied. See Beck v. Beck, 865 So.2d 446, 449 (Ala.Civ.App.2003) (Yates, P.J., with Thompson, Pittman, and Murdock, JJ., concurring in the result; and Crawley, J., dissenting) (dicta); Richburg v. Richburg, 895 So.2d 311, 318 (Ala.Civ.App.2004); and C.D.P. v. D.P., 927 So.2d 841 (Ala.Civ.App.2005).

In 2003, the Alabama Legislature amended the Act to its present form, as quoted in part above. Ala. Acts 2003, Act No. 2003–383, § 1, p. 1084. As shown, the amended Act does not expressly require a petitioning grandparent to prove that a child would be harmed in order to overcome the presumption that a fit parent's decision regarding grandparent visitation serves the best interests of the child. In Dodd v. Burleson, 932 So.2d 912 (Ala.Civ.App.2005) (plurality opinion) (“ Dodd I ”), Judge Pittman, in an opinion joined by Judge Thompson, interpreted that omission, as well as the maintenance of the best-interest language, as a legislative rejection of the harm standard established in L.B.S., 932 So.2d at 919. Judge Pittman went on to state that due process does not require a showing of harm in all cases as a prerequisite to a judgment awarding grandparent visitation. 932 So.2d at 920. However, the father in Dodd I had not preserved his constitutional challenge to the amended Act, so the majority of the court determined that Judge Pittman's statements regarding due-process requirements constituted dictum. 932 So.2d at 922–23 (Crawley, P.J., concurring in the result, joined by Bryan, J.; and Murdock, J., concurring in the result). Later, on appeal after remand, a majority of the court maintained that the issue whether due process requires a showing of harm to overcome a fit parent's decision regarding grandparent visitation could not be decided because that issue was not properly before the court. Dodd v. Burleson, 967 So.2d 715, 726 (Ala.Civ.App.2007) (“ Dodd II ”) (Moore, J., concurring in the result, joined by Bryan and Thomas, JJ.); see also J.W.J., 976 So.2d at 1042 n.3 (noting that the issue remained undecided).

The Facts and Procedural History

The issue now presents itself squarely for our review in the context of an appeal from a judgment of the Jefferson Circuit Court (“the trial court”) awarding grandparent visitation over the objection of fit, natural, custodial parents. Briefly, the underlying facts, when viewed in a light most favorable to the findings of fact entered by the trial court, show that E.H.G. and C.L.G. (“the parents”) were married in 1995 and that their marriage produced two children, G.C.G., who was born in 1996, and A.K.G., who was born in 1997. E.R.G. and D.W.G. (“the paternal grandparents”) enjoyed what the trial court characterized as a loving relationship with the children for most of their young lives. The testimony of several witnesses indicates that D.W.G. (“the paternal grandmother”), largely with the consent or acquiescence of the parents, took a particularly active role in rearing the children, including fostering relationships between the children and their extended paternal family and friends. C.L.G. (“the mother”) testified that when the children were very young, the two families had basically blended together and had acted as a single unit, with the paternal grandmother asserting a great deal of control over the care of the children, sometimes even in violation of the mother's desires. However, beginning in the spring of 2004, around the time the paternal grandparents, who had long supported the parents, began having financial problems, the parents began curtailing the time the children spent with the paternal grandparents. According to the testimony of the paternal grandparents, which the trial court found to be accurate, in February 2005, after the paternal grandparents withheld from the parents the proceeds from the sale of inventory from the business operated by E.H.G. (“the father”) and E.R.G. (“the paternal grandfather”), the parents forbade the paternal...