K.G. v. S.H. (Ex parte S.H.), 2180892

CourtAlabama Court of Civil Appeals
Writing for the CourtEDWARDS, Judge.
Citation321 So.3d 1
Parties EX PARTE S.H. (In re: K.G. v. S.H.)
Docket Number2180892
Decision Date11 October 2019

321 So.3d 1


(In re: K.G.


Court of Civil Appeals of Alabama.

October 11, 2019

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

321 So.3d 2

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.

" ‘ " ‘A writ of mandamus is an extraordinary remedy that is available when a trial court has exceeded its discretion. Ex parte Fidelity Bank, 893 So. 2d 1116, 1119 (Ala. 2004). A writ of mandamus is "appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court." Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001).’ " ’ "

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

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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:

"(b) A grandparent may file an original action in a circuit court where his or her grandchild resides or any other court exercising jurisdiction with respect to the grandchild or file a motion to intervene in any action when any court in this state has before it any issue concerning custody of the grandchild, including a domestic relations proceeding involving the parent or parents of the grandchild, for reasonable visitation rights with respect to the grandchild if any of the following circumstances exist:

"(1) An action for a divorce or legal separation of the parents has been filed, or the marital relationship between the parents of the child has been severed by death or divorce.

"(2) The child was born out of wedlock and the petitioner is a maternal grandparent of the child.

"(3) The child was born out of wedlock, the petitioner is a paternal grandparent of the child, and paternity has been legally established.

"(4) An action to terminate the parental rights of a parent or parents has been filed or the parental rights of a parent has been terminated by court order; provided, however, the right of the grandparent to seek visitation terminates if the court approves a petition for adoption by an adoptive parent, unless the visitation rights are allowed pursuant to [ Ala. Code 1975, §] 26-10A-30."

§ 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.

" ‘[T]he rule is well recognized that in the construction of a statute, the legislative intent is to be determined from a consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the language in question is found. The intent so deduced from the whole will prevail over that of a particular part considered separately.’

" Blair v. Greene, 246 Ala. 28, 30, 18 So. 2d 688, 689 (1944).

" ‘It is well settled that when it is interpreting a statute this Court seeks to give effect to the intent of the Legislature, as determined primarily from the language of the statute itself. Beavers v. County of Walker, 645 So. 2d 1365, 1376 (Ala. 1994) (citing Ex parte McCall, 596 So. 2d 2 (Ala. Civ. App. 199[1]) ); Volkswagen of America, Inc. v. Dillard, 579 So. 2d 1301 (Ala. 1991). Also, our rules of statutory construction direct us to look at the statute as a whole to determine the meaning of certain language that is, when
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viewed in isolation, susceptible to multiple reasonable interpretations. McRae v. Security Pac. Hous. Servs., Inc., 628 So. 2d 429 (Ala. 1993).’

" Ex parte Alfa Fin. Corp., 762 So. 2d 850, 853 (Ala. 1999)."

State Farm Mut. Auto. Ins. Co. v. Motley, 909 So. 2d 806, 813 (Ala. 2005).


" ‘[u]nder common law principles, grandparents lacked any legal right to visitation and communication with the grandchildren if such visitation was forbidden by the parents.’ Ex parte Bronstein, 434 So. 2d 780, 782 (Ala. 1983).... [T]he rights of grandparents to visitation with their grandchildren exist only as created by [statute]; they are purely statutory."

Ex parte E.R.G., 73 So. 3d 634, 646 (Ala. 2011) (discussing Ala. Code 1975, former § 30-3-4.1, the predecessor statute to the GVA). Because the GVA is in derogation of the common law, we are further guided by the principle that,

"[i]n Alabama, ‘[s]tatutes in derogation or modification of the common law are strictly construed. Cook v. Meyer, 73 Ala. 580 (1883). Such statutes are presumed not to alter the common law in any way not expressly declared. Pappas v. City of Eufaula, 282 Ala. 242, 210 So. 2d 802 (1968).’ Arnold v. State, 353 So. 2d 524, 526 (Ala. 1977)."

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 ("The right of parents to direct the upbringing of their children has long been recognized as fundamental by the United States Supreme Court...

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1 practice notes
  • Ex parte V.G., CL-2022-0993
    • United States
    • Alabama Court of Civil Appeals
    • January 6, 2023
    ...adequate." Ex parte Gulf Health Hosps., Inc., 321 So.3d 629, 633 (Ala. 2020). We note that the aunt relies exclusively on Ex parte S.H., 321 So.3d 1 (Ala. Civ. App. 2019), a case in which a paternal grandmother sought an award of visitation under the GVA with her grandchild who was in the c......
1 cases
  • Ex parte V.G., CL-2022-0993
    • United States
    • Alabama Court of Civil Appeals
    • January 6, 2023
    ...adequate." Ex parte Gulf Health Hosps., Inc., 321 So.3d 629, 633 (Ala. 2020). We note that the aunt relies exclusively on Ex parte S.H., 321 So.3d 1 (Ala. Civ. App. 2019), a case in which a paternal grandmother sought an award of visitation under the GVA with her grandchild who was in the c......

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