SB 336

Under existing law, a grandparent may petition for court-ordered visitation with a grandchild by filing an action in the circuit court

This bill would require an action by a grandparent requesting visitation with a grandchild to be assigned to the circuit court, domestic relations division, if one exists, or to a circuit judge in the circuit who regularly hears domestic relations cases

Relating to grandparent visitation; to amend Section 30-3-4.2 of the Code of Alabama 1975, to provide further for the filing and assignment of an action in the circuit court.

Section 1

Section 30-3-4.2 of the Code of Alabama 1975, is amended to read as follows:

§30-3-4.2.

(a) For the purposes of this section, the following words have the following meanings:

(1) GRANDPARENT. The parent of a parent, whether the relationship is created biologically or by adoption.

(2) HARM. A finding by the court, by clear and convincing evidence, that without court-ordered visitation by the grandparent, the child's emotional, mental, or physical well-being has been, could reasonably be, or would be jeopardized.

(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 Section 26-10A-30.

(c)(1) There is a rebuttable presumption that a fit parent's decision to deny or limit visitation to the petitioner is in the best interest of the child.

(2) To rebut the presumption, the petitioner shall prove by clear and convincing evidence, both of the following:

a. The petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation.

b. Visitation with the petitioner is in the best interest of the child.

(d) To establish a significant and viable relationship with the child, the petitioner shall prove by clear and convincing evidence any of the following:

(1) a. The child resided with the petitioner for at least six consecutive months with or without a parent present within the three years preceding the filing of the petition.

b. The petitioner was the caregiver to the child on a regular basis for at least six consecutive months within the three years preceding the filing of the petition.

c. The petitioner had frequent or regular contact with the child for at least 12 consecutive months that resulted in a strong and meaningful relationship with the child within the three years preceding the filing of the petition.

(2) Any other facts that establish the loss of the relationship between the petitioner and the child is likely to harm the child.

(e) To establish that visitation with the petitioner is in the best interest of the child, the petitioner shall prove by clear and convincing evidence all of the following:

(1) The petitioner has the capacity to give the child love, affection, and guidance.

(2) The loss of an opportunity to maintain a significant and viable relationship between the petitioner and the child has caused or is reasonably likely to cause harm to the child.

(3) The petitioner is willing to cooperate with the parent or parents if visitation with the child is allowed.

(f) The court shall make specific written findings of fact in support of its rulings.

(g)(1) A grandparent or grandparents who are married to each other may not file a petition seeking an order for visitation more than once every 24 months absent a showing of good cause. The fact that a grandparent or grandparents who are married to each other have petitioned for visitation shall not preclude another grandparent from subsequently petitioning for visitation within the 24-month period. After an order for grandparent visitation has been granted, the parent, guardian, or legal custodian of the child may file a petition requesting the court to modify or terminate a grandparent's visitation time with a grandchild.

(2) The court may modify or terminate visitation upon proof that a material change in circumstances has occurred since the award of grandparent visitation was made and a finding by the court that the modification or termination of the grandparent visitation rights is in the best interest of the child.

(h) The court may award any party reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney's fees, guardian ad litem fees, investigative fees, expenses for court-appointed witnesses, travel expenses, and child care during the course of the proceedings.

(i)(1) Notwithstanding any provisions of this section to the contrary, a petition filed by a grandparent having standing under Chapter 10A of Title 26, seeking visitation shall be filed in probate court and is governed by Section 26-10A-30, rather than by this section if either of the following circumstances exists:

a. The grandchild has been the subject of an adoption proceeding other than the one creating the grandparent relationship.

b. The grandchild is the subject of a pending or finalized adoption proceeding.

(2) Notwithstanding any provisions of this section to the contrary, a grandparent seeking visitation pursuant to Section 12-15-314 shall be governed by that section rather than by this section.

(3) Notwithstanding any provisions of this section to the contrary, a parent of a parent whose parental rights have been terminated by a court order in which the petitioner was the Department of Human Resources, shall not be awarded any visitation rights pursuant to this section.

(j) The right of a grandparent to maintain visitation rights pursuant to this section terminates upon the adoption of the child except as provided by Section 26-10A-30.

(k) All of the following are necessary parties to any action filed under this section:

(1) Unless parental rights have been terminated, the parent or parents of the child.

(2) Every other person who has been awarded custody or visitation with the child pursuant to court order.

(3) Any agency having custody of the child pursuant to court order.

(l) In addition, upon filing of the action, notice shall be given to all other grandparents of the child. The petition shall affirmatively state the name and address upon whom notice has been given.

(m) Service and notice shall be made in the following manner:

(1) Service of process on necessary parties shall be made in accordance with the Alabama Rules of Civil Procedure.

(2) As to any other person to whom notice is required to be given under subsection (l), notice shall be given by first class mail to the last known address of the person or persons entitled to notice. Notice shall be effective on the third day following mailing.

(n) Notwithstanding the foregoing, the notice requirements provided by this section may be limited or waived by the court to the extent necessary to protect the confidentiality and the health, safety, or liberty of a person or a child.

(o) Upon filing an action under this section, after giving special weight to the fundamental right of a fit parent to decide which associations are in the best interest of his or her child, the court may, after a hearing, enter a pendente lite order granting temporary visitation rights to a grandparent, pending a final order, if the court determines from the evidence that the petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation, visitation would be in the best interest of the child, and any of the following circumstances exist:

(1) The child resided with the grandparent for at least six consecutive months within the three years preceding the filing of the petition.

(2) The grandparent was the caregiver of the child on a regular basis for at least six consecutive months within the three years preceding the filing of the petition.

(3) The grandparent provided significant financial support for the child for at least six consecutive months within the three years preceding the filing of the petition.

(4) The grandparent had frequent or regular contact with the child for at least 12 consecutive months within the three years preceding the filing of the petition.

(p) As a matter of public policy, this section recognizes the importance of family and the fundamental rights of parents and children. In the context of grandparent visitation under this section, a fit parent's decision regarding whether to permit grandparent visitation is entitled to special weight due to a parent's fundamental right to make decisions concerning the rearing of his or her child. Nonetheless, a parent's interest in a child must be balanced against the long-recognized interests of the state as parens patriae. Thus, as applied to grandparent visitation under this section, this section balances the constitutional rights of parents and children by imposing an enhanced standard of review and consideration of the harm to a child caused by the parent's limitation or termination of a prior relationship of a child to his or her grandparent.

(q) Any original action shall be filed in the circuit court, domestic relations division, if one exists in the circuit, or shall be assigned to a circuit court judge who regularly hears domestic relations cases."

Section 2

This act shall become effective immediately on its passage and approval by the Governor, or its otherwise becoming law.