J.W.J., Jr. v. P.K.R.

• Decision Date: 28 March 2008
• Docket Number: 2061017.
• Citation: 999 So.2d 943
• Parties: J.W.J., Jr. v. P.K.R. and P.H.R.
• Court: Alabama Court of Civil Appeals

999 So.2d 943

J.W.J., Jr. v. P.K.R. and P.H.R.

2061017.

Court of Civil Appeals of Alabama.

March 28, 2008.

Rehearing Denied May 16, 2008.

Certiorari Denied August 8, 2008.

Alabama Supreme Court 1071205.

Linda F. Coats, Huntsville, for appellant.

William P. Burgess, Jr., and Rebekah L. Howard of William P. Burgess, Jr., P.C., Huntsville, for appellees.

MOORE, Judge.

J.W.J., Jr. ("the father"), appeals from a judgment entered on July 26, 2007, by the Madison Circuit Court, awarding P.K.R. and P.H.R. ("the maternal grandparents") visitation with the father's minor child ("the child"). We affirm in part, reverse in part, and remand.

Facts

This is the third time this case has been before this court on appeal. In J.W.J., Jr. v. P.K.R., 906 So.2d 182 (Ala.Civ.App. 2005), this court dismissed the father's appeal from a void judgment entered by the Madison Juvenile Court that purported to award the maternal grandparents specified visitation with the child. In J.W.J., Jr. v. P.K.R., 976 So.2d 1035 (Ala.Civ.App.2007) ("J.W.J. II"), this court reversed a judgment of the Madison Circuit Court ("the trial court") that was entered on May 11, 2006. Because they have not changed, we reiterate the facts from J.W.J. II:

"On January 26, 2001, the Madison Juvenile Court (`the juvenile court') entered a judgment declaring J.W.J., Jr., to be the biological father of P.J. (`the child'). The juvenile court awarded custody of the child to the child's mother and awarded the father visitation rights.

"During the mother's pregnancy and after the child's birth, the mother and the child resided with the maternal grandparents. The maternal grandparents cared for the child while the mother worked and attended college. The father regularly exercised his visitation rights.

"The mother died on December 19, 2002, when the child was two and one-half years old. The father picked the child up for his regular visitation period on December 20, 2002, and returned the child to the maternal grandparents' home on December 26, 2002. The father later assumed physical custody of the child, and the child resided with the father in the home of the father's parents (the child's paternal grandparents). On January 5, 2003, the father and the maternal grandparents had a discussion regarding custody of the child; that discussion ended with the father denying the maternal grandparents any visitation with the child.

"Not long after that discussion, the maternal grandparents petitioned the juvenile court for visitation rights, pursuant to Ala.Code 1975, § 30-3-4.1 (`the Grandparent Visitation Act'). The father and the maternal grandparents reached an agreement, which the juvenile court incorporated into a pendente lite order, whereby the maternal grandparents were awarded visitation on the first and third weekends of each month. The juvenile court subsequently entered a final order awarding the maternal grandparents far more extensive visitation rights. The father appealed, and this court reversed the juvenile court's judgment, concluding that the juvenile court lacked jurisdiction to enter an order on the visitation petition and that the juvenile court's order was therefore void. See J.W.J. v. P.K.R., 906 So.2d 182 (Ala.Civ.App.2005).

"Although this court ruled that the order of the juvenile court awarding grandparent visitation was void, the father continued to allow the maternal grandparents to visit with the child. The father permitted the child to stay with the maternal grandparents one weekend per month and for seven days during June 2004. The father also allowed the child to visit with the maternal grandparents on additional occasions upon the maternal grandparents' request.

"Although regularly receiving visitation, the maternal grandparents filed a second petition for grandparent-visitation rights in the Madison Circuit Court (`the circuit court') in February 2005. On April 1, 2005, the father answered the petition, asserting that the Grandparent Visitation Act violates his federal constitutional rights. On May 4, 2005, the attorney general filed his response to the father's constitutional challenge.

"On May 4, 2006, the circuit court held an ore tenus hearing. The father testified that the child loves the maternal grandparents and that the maternal grandparents love the child. He stated that he would not take the child out of the lives of the maternal grandparents because they love each other and because the child needs her mother's side of the family in her life. The father testified that he has no doubt that the maternal grandparents will take care of the child during the time they visit with her. The father testified, however, that he felt it would be detrimental to the child if he were deprived of the ability to determine the time, the place, and the manner of the child's visitation with the maternal grandparents. The father noted that during the time a court-ordered visitation schedule had been in place, the maternal grandparents had denied his request to alter the visitation schedule so the child could attend an event with him and his family on the fourth of July. He stated that when there is no court-ordered visitation schedule in place there is communication and flexibility. He also stated that during the time in which there was no court-ordered visitation schedule, he had agreed to set the maternal grandparents' visitation for the second weekend of each month unless one of the parties needed to change that schedule.

"The maternal grandparents do not dispute that the father has allowed the child to visit with them; however, they assert that there have been communication problems that worsen when there is no court-ordered visitation schedule in place. They testified that the visitation plans are often made at the last minute and that the last-minute arrangements create planning problems. The maternal grandfather testified that he has to contact the father every month and verify which weekend they will have the child for visitation. The maternal grandparents also testified that they have problems getting in touch with the child because the child is not home when they call her. They further testified that the father had not informed them of where the child would be attending school until school had already begun and that, therefore, the maternal grandmother had not been able to be present for the child's first day of school. The maternal grandfather testified that he has been concerned that the father would `cut off' visitation. He acknowledged that the father had testified at his deposition that he did not foresee himself withholding visitation from the maternal grandparents but that he would not exclude the possibility.

"The testimony of Dr. Frankie Preston, a psychologist who had evaluated the child, indicated that termination or undue limitation of the child's access to the maternal grandparents could be harmful to the child. The father testified that he respects Dr. Preston's advice and that he intended to follow it. The parties stipulated that Dr. Preston's current opinion was that the child is a `healthy, normal five year old.'

"On May 11, 2006, the circuit court entered a judgment setting forth findings of fact and conclusions of law and awarding visitation rights to the maternal grandparents. Specifically, the circuit court ordered that the maternal grandparents `shall visit' with the child on the following occasions:

"`a. The second weekend of every month from the end of the school day or 4:00 p.m. on Friday until the beginning of school or 8:00 a.m. Monday morning. If this weekend conflicts with the father's birthday or Father's Day then the parties will cooperate in choosing an alternate weekend for that month.

"`b. The fifth weekend of every month from the end of the school day or 4:00 p.m. on Friday until the beginning of school or 8:00 a.m. Monday morning. If this weekend conflicts with the father's birthday or Father's Day then the parties will cooperate in choosing an alternate weekend for that month.

"`c. One week in June to begin with the second weekend visitation. This visit will begin at 4:00 p.m. Friday through the following week and end on the second Monday morning at 8:00 a.m. If this weekend conflicts with the father's birthday or Father's Day then the parties will cooperate in choosing an alternate week for that month.

"`d. One week in July to begin with the second weekend visitation. This visit will begin at 4:00 p.m. Friday through the following week and end on the second Monday morning at 8:00 a.m.

"`e. The week following Christmas to start at 8:00 a.m. on December 26th through January 2nd at 4:00 p.m.

"`f. Mother's Day from 8:00 a.m. to 6:00 p.m.

"`g. Grandparent's Day every even-numbered year from 8:00 a.m. to 6:00 p.m.

"`h. [The child's] birthday from 5:00 p.m. to 8:00 p.m., every odd-numbered year. In even-numbered years, from 5:00 p.m. to 8:00 p.m. on the day preceding or subsequent to [the child's] birthday.

"`i. Visitation provided for herein shall not preclude other and further visitation as the parties may from time to time agree. The households of both parties shall be maintained in a wholesome and proper moral atmosphere whenever the minor child is present.'

"The judgment also granted the maternal grandparents telephone-visitation rights and the right to eat lunch with the child at her school and to attend the child's school and extracurricular activities."

976 So.2d at 1036-1038 (footnote omitted).

In J.W.J. II, a majority of this court held that the trial court had violated the father's substantive due-process rights by failing to presume that his decisions regarding the amount, method, and duration of grandparent visitation were in the best interests of the child. 976 So.2d at 1043. The entire court agreed that the trial court had erred in deciding the case based on a preponderance-of-the-evidence standard because the presumption in favor of the father's visitation decisions...