K.G. v. S.H. (Ex parte S.H.)
Citation | 321 So.3d 1 |
Decision Date | 11 October 2019 |
Docket Number | 2180892 |
Parties | EX PARTE S.H. (In re: K.G. v. S.H.) |
Court | Alabama Court of Civil Appeals |
Traci Owen Vella of Vella & King, Birmingham, for petitioner.
Submitted on petitioner's brief only.
In May 2016, the Jefferson Juvenile Court ("the juvenile court") determined that L.G. ("the child") was a dependent child and awarded custody of the child to S.H. ("the maternal grandmother"). At that time, according to the 2016 judgment, both of the child's parents were deceased. In February 2017, K.G. ("the paternal grandmother") instituted in the Jefferson Circuit Court ("the circuit court") an action against the maternal grandmother in which the paternal grandmother sought to establish grandparent visitation pursuant to the Grandparent Visitation Act ("the GVA"), Ala. Code 1975, § 30-3-4.2. The maternal grandmother filed a motion to dismiss the paternal grandmother's action in March 2017, which motion she renewed in July 2017 and in March 2019.1 On July 2, 2019, the circuit court entered an order denying the maternal grandmother's motion to dismiss; in that same order, the circuit court awarded the paternal grandmother pendente lite grandparent visitation pending a trial to be held in January 2020. The maternal grandmother filed in this court a petition for the writ of mandamus on August 5, 2019. Although we called for answers to the maternal grandmother's petition, none were filed.
" ‘ " " ’ "
Ex parte Gentry, 228 So. 3d 1016, 1022 (Ala. Civ. App. 2017) (quoting Ex parte Brown, 963 So. 2d 604, 606–07 (Ala. 2007), quoting in turn Ex parte Rawls, 953 So. 2d 374, 377 (Ala. 2006), quoting in turn Ex parte Antonucci, 917 So. 2d 825, 830 (Ala. 2005) ). A petition for the writ of mandamus is a proper vehicle for reviewing an order awarding pendente lite grandparent visitation. Ex parte Gentry, 238 So. 3d 66, 72 (Ala. Civ. App. 2017) ; Ex parte McElrath, 258 So. 3d 364, 367 (Ala. Civ. App. 2018).
In her petition, the maternal grandmother first argues that the circuit court lacks jurisdiction over the paternal grandmother's action. She asserts that the juvenile court acquired jurisdiction over the child pursuant to its exercise of dependency jurisdiction and that, because it has not terminated its jurisdiction over the child, the circuit court could not attain jurisdiction over a matter involving the child. Secondly, the maternal grandmother argues that, because custody of the child is not vested in a parent, the GVA does not operate in this instance to permit the paternal grandmother to seek visitation. Finally, the maternal grandmother asserts that, if the GVA does apply, the circuit court failed to properly apply the GVA to award the paternal grandmother pendente lite visitation because the circuit court failed to hold an evidentiary hearing and lacked evidence supporting the requirements for an award of pendente lite grandparent visitation.
We find the maternal grandmother's second issue dispositive of her petition. In essence, the maternal grandmother contends that the GVA is worded in such a way as to apply solely to conflicts regarding visitation between grandparents and parents. Thus, she says, the paternal grandmother cannot utilize the GVA to seek visitation with the child because, although she is the child's legal custodian, the maternal grandmother is not a parent.
The GVA provides, in pertinent part:
§ 30-3-4.2(b).
The GVA does not define the term "parent." Generally, " ‘[w]ords used in a statute must be given their natural, plain, ordinary, and commonly understood meaning.’ " Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So. 2d 293, 296 (Ala. 1998) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992) ). The traditional dictionary definition of "parent" includes both "one that begets or brings forth offspring" and "a person who brings up and cares for another." Merriam–Webster's Collegiate Dictionary 900 (11th ed. 2003). Thus, the term "parent" could be read narrowly to refer to biological parents or expansively to include within its ambit persons who, like the maternal grandmother, rear children in the absence of their parents.
We are guided in our efforts to discern the intended meaning of the term "parent" as used in the GVA by the following principles.
State Farm Mut. Auto. Ins. Co. v. Motley, 909 So. 2d 806, 813 (Ala. 2005).
Baldwin v. Branch, 888 So. 2d 482, 484-85 (Ala. 2004).
A reading of the GVA itself in its entirety reveals that it contains provisions designed to recognize and protect the fundamental right of a parent to control the associations of his or her children. See Ex parte E.R.G., 73 So. 3d at 642 (). Specifically, § 30-3-4.2(c)(1) provides "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." In addition, § 30-3-4.2(p) "recognizes ... the fundamental rights of parents" and indicates that "a fit parent's decision regarding whether to permit grandparent visitation is entitled to special weight." Moreover, the GVA defines "grandparent" as a "parent of a parent" and requires a biological or adoptive relationship between the parent and the grandparent. § 30-3-4.2(a)(1). Thus, a fair reading of the GVA and a consideration of the context of the uses of the term "parent" throughout it, indicate that the legislature intended the term "parent" to refer to a person who is a natural parent or an adoptive parent of the grandchild at issue.2
The GVA creates a cause of action in which a grandparent may seek visitation rights from a parent of his or her grandchild, a right to which that grandparent was not entitled at common law. See Ex parte E.R.G., 73 So. 3d at 646. The creation of that cause of action was within the purview of the legislature, and this court is bound to strictly construe the statute so as to...
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Ex parte V.G.
...order and dismissing the paternal grandmother's action." Ex parte S.H., 321 So.3d at 5 (emphasis added; footnote omitted). Based on Ex parte S.H., supra, the aunt contends that maternal grandparents lack "standing" to assert their claims seeking an award of visitation with the children. An ......