Alabama grandparents were entitled to hearing on visitation petition

In Tripp v. Owens, the Court of Civil Appeals of Alabama reversed a trial court's order dismissing the paternal grandparents' petition for contact and visitation rights with their son's minor child. The appellate court held that the trial court's dismissal was based on a misapplication of court precedent.

The state's Grandparent Visitation Act establishes a presumption that the decision of a "fit" parent to deny or limit a grandparent's visitation is in the best interest of the child. To overcome this presumption, a grandparent seeking an order for reasonable visitation rights must prove by clear and convincing evidence that such visitation is in the best interest of the child and that the grandparent has established a "significant and viable relationship" with the child.

Background and procedural history

The grandparents' petition alleged that the child was born in 2009, that their son married the child's the mother in 2011, and that their son had died in an automobile accident in 2012. The petition further alleged that their son, the mother, the child, and the mother's daughter had lived with the grandparents during the period from 2009 to 2012. The petition stated that divorce proceedings filed by their son against the mother in 2012 were still pending when their son died. The petition also stated that the mother was not allowing the grandparents to have regular, unsupervised contact and visitation with the child and that such contact and visitation with them would be in the child's best interest.

The trial court dismissed the petition on the ground that the Alabama Grandparent Visitation Act had been declared unconstitutional in a 2011 opinion issued by the Alabama Supreme Court in the case of Ex Parte E.R.G. and D.W.G.

The grandparents responded by filing pleadings asking the trial court to set aside its dismissal. The grandparents argued that the Alabama Supreme Court's ruling was not applicable in their case because the grandparent visitation law had been amended by the state legislature and the revised version of the law took effect after the Supreme Court decision was handed down.

The trial court denied the grandparents' request to set aside the dismissal. The grandparents appealed the ruling to the Court of Civil Appeals.

The decision of the Court of Civil Appeals

On appeal, the grandparents argued that the amended version of the grandparent visitation law had never been held unconstitutional. They also argued that the trial court should have granted them a hearing and an opportunity to offer proof to overcome the statutory presumption in favor of the mother with evidence showing that contact and visitation rights with the child would be in the child's best interest.

The Court of Civil Appeals agreed and reversed the trial court's decision. The trial court had incorrectly concluded that the ruling in Ex Parte E.R.G. and D.W.G was applicable to the revised version of the grandparent visitation law, even though the revised legislation took effective after the case was decided.

The Court of Civil Appeals sent the case back to the trial court with instructions to provide the grandparents with an evidentiary hearing on their petition unless the constitutionality of the revised version of the grandparent visitation law is challenged and ruled to be unconstitutional.

Contact an attorney

If you face issues relating to child custody, divorce or other domestic relations matters, you should consult with a competent attorney, experienced in family law matters for the protection of their legal rights.

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