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Grandparents Rights to Visitation
Our experienced family lawyers know how devastating it can be for a grandparent losing the right to see grandchildren. It is often overwhelming, heartbreaking, and quite simply unfair.
Alabama courts follow the Supreme Court decision in Troxel v. Granville. In that case, the court held that a parent has a constitutional right to decide whether to permit or restrict visitation. For example, if two married parents do not wish for a grandparent to see the children, there is not much a court can do about it, except perhaps in very unique cases.
A grandparent must actually petition a court for the right to see a grandchild. In such a situation, Section 30-3-4.2 of the Alabama Code provides that a grandparent is entitled to reasonable visitation with a grandchild, if the grandparent can prove that not allowing that visitation would be detrimental to the grandchild. This is called the “harm standard,” and it is a very tough standard to meet. There are four situations where the law actually applies:
Marriage of the parents ended by divorce, or one of the parents has died
Maternal grandparents of a child born out of wedlock
Paternal grandparents of a child born out of wedlock (and paternity is proven)
There is a pending action to terminate parental rights
Grandparents' rights in Alabama is a complex area of law. Because grandparents’ visitation rights are far from guaranteed, grandparents looking to ensure they have access to their grandchildren will want experienced legal advice from a qualified family law attorney.
Grandparents Rights to Custody
Grandparents seeking custody of their grandchildren can file a dependency petition with the court.
A dependency petition informs the court that the natural parents or custodial parents are no longer willing or able to care for the children emotionally, physically, mentally, or educationally.
Under Alabama law, a dependent child is a child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:
1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in subdivision (2) of Section 12-15-301 or neglect as defined in subdivision (4) of Section 12-15-301, or allows the child to be so subjected.
2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.
4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state.
5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 12-15-301.
6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.
7. Who has been placed for care or adoption in violation of the law.
8. Who, for any other cause, is in need of the care and protection of the state.
Through a dependency petition, Grandparents can ask the courts to grant them custody without adopting the grandchild or terminating the parental connection to the child’s natural parents.
This is a good option for any grandparent who is having to take care of the grandchild because the parents may have fallen onto hard times, are incarcerated, or in a long-term treatment or rehabilitation program.
Our family law team is here to help, because helping families is a great part of what we do at the Spencer Wright Law Firm!