The Alabama Supreme Court held in June of this year that the State’s grandparent visitation statute (§30-3-4.1, Ala. Code 1975) is unconstitutional and therefore unenforceable. As a result, there may be no viable way for grandparents to obtain visitation rights with their grandchildren through a divorce court.

In Ex parte E.R.G., [Ms. 1090883, June 10, 2011] ___ So. 3d ___ (Ala. 2011) the Court found that the right of a fit parent to determine, among other things, who has contact with their child is a “fundamental” right and therefore any law interfering with that right must pass the “strict scrutiny” test to be constitutional. This test is the most stringent one a court applies to determine the validity of a statute and our Supreme Court held that it was not met in this case.

The question of how this ruling affects older cases where grandparent visitation has already been awarded was recently addressed in Burnette v. Burnett, [Ms. 2100935, December 9, 2011] ___So. 3d___ (Ala. Civ. App. 2011). The Alabama Court of Civil Appeals held that a change in substantive law, such as a finding that a statute is unconstitutional, should be applied retroactively. As a result, the court overturned a previous award of visitation to grandparents.

Interestingly, the Alabama Legislature amended the grandparent visitation statute to make it more difficult for grandparents to get visitation. The court in Burnett mentioned this and specifically stated that they were not addressing the question of whether or not the amendments to the statute were constitutional since they were not in effect at the time of that decision.

What does this mean for parents and grandparents dealing with visitation issues? It’s good for parents and definitely not good for grandparents. Any parent who does not want to continue sending their child to visit grandparents can now file a motion to terminate that visitation order and have a good chance of succeeding. Grandparents who are still willing to fight for visitation will have to rely on the recent amendments to the statute and be willing to defend the constitutionality of those amendments until our courts determine whether the statute will survive.