RSC v. JBC

• Decision Date: 31 August 2001
• Citation: 812 So.2d 361
• Parties: R.S.C. and C.V.C. v. J.B.C.
• Court: Alabama Court of Civil Appeals

812 So.2d 361

R.S.C. and C.V.C. v. J.B.C.

2990943.

Court of Civil Appeals of Alabama.

August 31, 2001.

Ronald L. Allen of Merrill, Merrill, Mathews & Allen, Anniston, for appellants.

Gordon F. Bailey, Jr., Anniston, for appellee.

MURDOCK, Judge.

R.S.C. and C.V.C., the married parents of two children, aged 13 and 10 years at the time of the trial in this case, appeal from a judgment of the Calhoun County Circuit Court awarding grandparental visitation to the paternal grandfather, J.B.C. ("the grandfather"), under § 30-3-4.1, Ala. Code 1975. That statute provides, in part, that any grandparent (such as the grandfather here):

"may file an original action for visitation rights to a minor child if it is in the best interest of the minor child ... [w]hen 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."

Ala.Code 1975, § 30-3-4.1(b). The statute states that 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." Ala.Code 1975, § 30-3-4.1(d). The statute also specifies that "[t]here shall be a rebuttable presumption in favor of visitation by any grandparent." Ala.Code 1975, § 30-3-4.1(e).

Because we find § 30-3-4.1 unconstitutional as applied in this case, we reverse the judgment of the trial court.

I. Facts and Procedural History

The grandfather and his wife, S.M.C. ("the step-grandmother"), filed a petition for grandparental visitation on December 10, 1999. The grandfather and step-grandmother alleged that their continuous and ongoing relationship with the children had been terminated by the parents, without explanation. The parents answered, saying they had not interfered with the grandfather's visitation. They alleged that the step-grandmother, who is not a natural grandparent, had no right to visitation, and denied that she was a proper person to have visitation with the children. The parents also asserted that the grandparental-visitation statute under which the petition was brought, § 30-3-4.1, Ala.Code 1975, was unconstitutional, and notified the State Attorney General of their constitutional challenge, as required by § 6-6-227, Ala.Code 1975. The Attorney General acknowledged service of the notice of the constitutional challenge and waived any further service or argument.

A guardian ad litem was appointed to represent the children, on January 24, 2000. On January 27, 2000, the parents moved for a summary judgment, contending that it was not in the best interests of the children to be in the presence of the step-grandmother. The grandfather and step-grandmother responded by alleging that the step-grandmother had acted as the children's paternal grandmother for most of the children's lives and that she had formed a bond with the children on that basis. On February 16, 2000, the grandfather and the step-grandmother filed a motion for a summary judgment in which they contended that they were entitled to visitation as a matter of law. On February 25, 2000, the trial court entered a summary judgment for the parents as to the step-grandmother's claim and ordered the parties to submit to mediation, which proved unsuccessful. The report of the mediator indicated that although the parents were willing to allow their children to visit with the grandfather, they were not willing to permit visitation where the children might also interact with the step-grandmother.

After conducting an ore tenus proceeding, the trial court entered a judgment that, among other things, denied all pending dispositive motions and granted overnight and other unsupervised visitation rights to the grandfather, consisting of one weekend per month, as well as an additional day during the week preceding New Year's Day and one day for Grandparents' Day. In response to the parties' post-judgment motions, the trial court subsequently modified its judgment to delete references to the presence of the step-grandmother, but otherwise denied those motions.

The parents appeal. In their brief on appeal, they contend, among other things, that the trial court's judgment must be reversed because, they say, § 30-3-4.1 impermissibly abridges fundamental constitutional rights guaranteed to them, as parents of minor children, under the United States Constitution and the Alabama Constitution. Consistent with the United States Supreme Court's recent decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and with this court's recent decision in J.S. v. D.W., [Ms. 2990431, May 4, 2001] ___ So.2d ___ (Ala. Civ.App.2001), we must agree with the parents' constitutional argument, and we pretermit discussion of all other issues raised.

II. Analysis

A. Grandparent-Grandchild Relationships

In recent decades, our society has seen a general disintegration of the family. It was not unreasonable, therefore, for our Legislature to attempt to strengthen extended family bonds by enacting a grandparental-visitation statute such as § 30-3-4.1. In the words of one court, such a statute responds

"`to the change in the demographics of domestic relations, mirrored by the dramatic increase in the divorce rate and in the number of children born to unmarried parents, and the increasing independence and alienation within the extended family inherent in a mobile society.' [Citation omitted.] There is no reason a petty dispute between a father and a son should be allowed to deprive a grandparent and grandchild of the unique relationship that ordinarily exists between those individuals. One of the main purposes of the statute is to prevent a family quarrel of little significance [from] disrupt[ing] a relationship which should be encouraged rather than destroyed."

King v. King, 828 S.W.2d 630, 632 (Ky.), cert. denied, 506 U.S. 941, 113 S.Ct. 378, 121 L.Ed.2d 289 (1992). If a grandparent is physically, mentally, and morally fit, then a grandchild ordinarily will benefit from a relationship with that grandparent. That grandparents and grandchildren normally can be expected to have a special bond cannot be denied. Each can benefit from contact with the other. Among other things, the child can learn lessons of love, respect, responsibility, and family and community heritage.

Thus, we are not prepared to say, as does Justice Thomas in his special concurrence in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), that a state has no interest in enabling relationships between grandparents and grandchildren. Indeed, we believe that statutes such as § 30-3-4.1 express a quite rational interest on the part of the state in enabling such relationships. "Testimony" that states do have a rational interest in enabling grandparent-grandchild relationships is found in the fact that the legislatures of all 50 states have seen fit to provide for grandparent visitation in some form. Troxel, 530 U.S. at 73 n.*, 120 S.Ct. 2054 (cataloging statutes from all 50 states).¹See also Herndon v. Tuhey, 857 S.W.2d 203, 209 (Mo.1993) (observing that "grandparents are members of the extended family whom society has traditionally recognized as playing an important role in the raising of their grandchildren").

In circumstances such as those presented in the present case, however, we do not believe that the state's interest in enabling grandparent-grandchild relationships is a "compelling state interest" for purposes of our decisional framework under the Fourteenth Amendment. Consequently, it must yield when confronted by a fundamental "liberty" interest. Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).

B. The Fourteenth Amendment

The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." Writing for the plurality in Troxel, Justice O'Connor stated:

"The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), we held that the `liberty' protected by the Due Process Clause includes the right of parents to `establish a home and bring up children' and `to control the education of their own.'"

530 U.S. at 65, 120 S.Ct. 2054. After noting the Court's holding in Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (the "liberty of parents" includes the right "to direct the upbringing and education of [their] children"), Justice O'Connor further observed:

"We returned to the subject in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. `It is cardinal with us that the custody, care and nurture of the child reside first in the parents....'"

Troxel, 530 U.S. at 65, 120 S.Ct. 2054.

The family is the foundation upon which modern civilization is based. It is not surprising, therefore, that our courts have zealously protected the integrity of the family and that, in cases subsequent to Prince, the United States Supreme Court repeatedly has affirmed the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)

; Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Michael H. v. Gerald D., 491...