SB3 By Senator Allen RFD Judiciary Rd 1 03-MAR-15

SYNOPSIS: Under existing statutory law, grandparents may petition for visitation with their grandchildren under certain circumstances. The Alabama Supreme Court declared parts of Alabama's existing grandparent visitation law unconstitutional.

This bill would repeal the existing grandparent visitation law and replace it with a new grandparent visitation law that requires the petitioning grandparent to prove, by clear and convincing evidence, that the grandparent has an existing relationship with the grandchild and visitation is in the best interest of the child. This bill would specify the factors that establish a significant and viable relationship for the purposes of establishing clear and convincing evidence. This bill would also establish the criteria and procedures for filing a petition.

A BILL TO BE ENTITLED AN ACT

Relating to grandparent visitation; to establish procedures by which certain grandparents may petition for visitation with their grandchildren; to provide for the burden of proof of the petitioner; and to repeal Section 30-3-4.1 of the Code of Alabama 1975.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. (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 petition a circuit court or district court of this state having jurisdiction over domestic relations (designated DR) or child support cases (designated CS) for reasonable visitation rights with respect to his or her grandchild under this section if any of the following circumstances exist:

(1) The marital relationship between the parents of the child has been severed by death, divorce, or legal separation.

(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.

(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; and

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 of either of the following:

(1)a. The child resided with the petitioner for at least six consecutive months with or without a parent present;

b. The petitioner was the caregiver to the child on a regular basis for at least six consecutive months; or

c. The petitioner had frequent or regular contact with the child for at least 12 consecutive months.

(2) Any other facts that establish that 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) That the petitioner has the capacity to give the child love, affection, and guidance.

(2) That 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) That the petitioner is wiling 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) No grandparent or grandparents who are married to each other may 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) Notwithstanding the foregoing, a petition filed by a grandparent seeking visitation shall be filed in probate court and is governed by Section 26-10A-30, Code of Alabama 1975, rather than by this act if either of the following circumstances exists:

(1) The grandchild has been the subject of an adoption proceeding other than the one creating the grandparent relationship; or

(2) The grandchild is the subject of a pending adoption proceeding.

(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 of the Code of Alabama 1975.

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

(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 as herein defined. 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 act 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 enter a pendente lite order granting temporary visitation rights to a grandparent, pending a final order, if the court determines from the evidence that visitation would be in the best interest of the child and one of the following circumstances exist:

(1) The child resided with the grandparent for at least six consecutive months; or

(2) The grandparent was the caregiver of the child on a regular basis for at least six consecutive months; or

(3) The grandparent provided significant financial support for the child for at least six consecutive months; or

(4) The grandparent had frequent or regular contact with the child for at least 12 consecutive months.

Section 2. Section 30-3-4.1 of the Code of Alabama 1975, is repealed.

Section 3. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.

Section 4. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Child Custody

Visitation

Family Law

Grandparents

Children

Domestic Relations

Code Repealed