LBS v. LMS

• Decision Date: 29 January 2002
• Citation: 826 So.2d 178
• Parties: Ex parte State of Alabama. (In re L.B.S. v. L.M.S.; and L.S. and L.S., intervenors).
• Court: Alabama Court of Civil Appeals

826 So.2d 178

Ex parte State of Alabama.

(In re L.B.S. v. L.M.S.; and L.S. and L.S., intervenors).

2000713.

Court of Civil Appeals of Alabama.

January 29, 2002.

J. Coleman Campbell and James E. Long, asst. attys. gen., Department of Human Resources, for petitioner.

Stephen P. Bussman, Fort Payne, for respondent.

THOMPSON, Judge.

L.B.S. (the "mother") and L.M.S. (the "father") were divorced on March 22, 2000. The couple had two children, N.L.S. and N.T.S (the "children"). Under the terms of the divorce judgment, the mother was awarded custody of the children. On June 13, 2000, following the divorce of the mother and the father, the father's parents, L.S. and L.S. (the "grandparents"), filed a motion to intervene and petitioned for visitation rights with the children pursuant to § 30-3-4.1, Ala.Code 1975. The grandparents' motion to intervene was granted on June 15, 2000. The mother then moved to dismiss the grandparents' petition for visitation and to strike the trial court's order allowing the grandparents to intervene. Following a hearing, the trial court denied the mother's motions. The mother filed an answer challenging the constitutionality of § 30-3-4.1, Ala.Code 1975, and served a notice of her constitutional challenge on the attorney general, pursuant to § 6-6-227, Ala.Code 1975. In response, the attorney general, acting on behalf of the State of Alabama (hereinafter the "State"), submitted a brief in support of the constitutionality of the statute.

On March 15, 2001, the trial court entered a judgment declaring § 30-3-4.1, Ala.Code 1975, facially unconstitutional and denying the grandparents' petition for visitation. In its judgment, the trial court, relying primarily on the recent United States Supreme Court case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), determined that § 30-3-4.1(e), Ala.Code 1975 (that part of the statute establishing a rebuttable presumption in favor of grandparent visitation), and § 30-3-4.1(d) (listing the factors for determining grandparent visitation), were unconstitutional because, it reasoned, those provisions failed to afford special weight to a parent's own determination regarding visitation. According to the trial court, without those two provisions, the remainder of § 30-3-4.1, Ala.Code 1975, failed to provide any standard upon which a court could rely in determining when and under what circumstances to award visitation. Therefore, the trial court concluded that the entire statute was unconstitutional on its face. Only the State appealed.

The United States Supreme Court, in Troxel v. Granville, stated that, with regard to child-visitation rights, parents have a fundamental right "to make decisions concerning the care, custody, and control" of their children, and that such a right is protected by the Due Process Clause of the United States Constitution. Troxel v. Granville, 530 U.S. at 75, 120 S.Ct. 2054. Troxel involved a Washington statute that permitted "any person" to file at "any time" a petition for visitation rights; the statute allowed the court to grant the petition whenever that visitation might serve the best interest of the child. Troxel, 530 U.S. at 60,120 S.Ct. 2054. The petitioners in Troxel were the paternal grandparents of two illegitimate children. They filed a petition seeking visitation rights with the children; the mother opposed the petition.¹Troxel, 530 U.S. at 60,120 S.Ct. 2054. The trial court granted visitation to the grandparents; the mother appealed. The Washington Supreme Court held that although the grandparents did have standing to petition for visitation, the statute providing for that visitation unconstitutionally infringed on the parents' fundamental right to rear their children. According to the Washington Supreme Court, the United States Constitution prohibits the State from interfering with a parent's fundamental right to parent, absent some harm or potential harm to the child. In addition, the court held that the Washington grandparent-visitation statute was overly broad. In re Custody of Smith, 137 Wash.2d 1, 969 P.2d 21 (1998).²

In affirming the Washington Supreme Court's judgment, the United States Supreme Court held that, as applied, Washington's grandparent-visitation statute violated the mother's due process "right to make decisions concerning the care, custody, and control of her two daughters" Troxel, 530 U.S. at 72, 120 S.Ct. 2054. According to the Supreme Court, Washington's statute was "breathtakingly broad" in that it allowed "any person" to petition at "any time" for visitation rights. Troxel, 530 U.S. at 67, 120 S.Ct. 2054. In reaching its conclusion, the Court held that the presumption created by the Washington statute in favor of grandparent visitation over a contrary decision by a parent was unconstitutional. According to the Court, "[t]he decisional framework employed by the [Washington trial court] directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child." Troxel, 530 U.S. at 69, 120 S.Ct. 2054. In addition, the Court stated that, in effect, the statute allowed a judge, basing a decision on a child's "best interest," to "overturn any decision by a fit custodial parent concerning visitation...." Troxel, 530 U.S. at 67, 120 S.Ct. 2054. According to the Supreme Court, the Washington trial court's "order was not founded on any special factors that might justify the State's interference with [the parent's] fundamental right to make decisions concerning the rearing of her two daughters." Troxel, 530 U.S. at 68, 120 S.Ct. 2054. The Court noted that "[t]he Washington Supreme Court had the opportunity to give [Washington's grandparent-visitation statute] a narrower reading, but it declined to do so." Troxel, 530 U.S. at 67, 120 S.Ct. 2054.

Alabama's grandparent-visitation statute, § 30-3-4.1, Ala.Code 1975, provides:

"(a) For the purposes of this section, the term `grandparent' means the parent of a parent of a minor child, the parent of a minor child's parent who has died, or the parent of a minor child's parent whose parental rights have been terminated when the child has been adopted pursuant to Section 26-10A-27, 26-10A-28, or 26-10A-30, dealing with stepparent and relative adoption.

"(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:

"(1) When one or both parents of the child are deceased.

"(2) When the marriage of the parents of the child has been dissolved.

"(3) When a parent of the child has abandoned the minor.

"(4) When the child was born out of wedlock.

"(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.

"(c) Any grandparent may intervene in and seek to obtain visitation rights in any action when any court in this state has before it any question concerning the custody of a minor child, a divorce proceeding of the parents or a parent of the minor child, or a termination of the parental rights proceeding of either parent of the minor child, provided the termination of parental rights is for the purpose of adoption pursuant to Sections 26-10A-27, 26-10A-28, or 26-10A-30, dealing with stepparent or relative adoption.

"(d) Upon the filing of an original action or upon intervention in an existing proceeding pursuant to subsections (b) and (c), the court shall grant any grandparent of the child reasonable visitation rights if the court finds that the best interests of the child would be served by the visitation. In determining the best interest 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.

"(e) The court shall make specific written findings of fact in support of its rulings. There shall be a rebuttable presumption in favor of visitation by any grandparent. An original action requesting visitation rights shall not be filed by any grandparent more than once during any two-year period and shall not be filed during any year in which another custody action has been filed concerning the child. After visitation rights have been granted to any grandparent, the legal custodian, guardian, or parent of the child may petition the court for revocation or amendment of the visitation rights, for good cause shown, which the court, in its discretion, may grant or deny. Unless evidence of abuse is alleged or other exceptional circumstances a petition shall not be filed more than once in any two-year period.

"(f) If the court finds that the grandparent or grandparents can bear the cost without unreasonable financial hardship, the court, at the sole expense of the petitioning grandparent or grandparents, may appoint a guardian ad litem for the minor child."

(Emphasis added.)

This court, in accordance with the United States Supreme Court's decision in Troxel, has recognized that parents have a fundamental right to make decisions concerning the "`care, custody, and...