March 27, 2014
Most states have now enacted statutes relating to grandparent visitation. Grandparent visitation statutes are primarily intended to protect the relationship between a grandparent and grandchild against the seemingly natural tension that may arise between in-laws.
Such tension often occurs following a divorce or death. Grandparent visitation statutes must also protect against unconstitutional intrusions on a parent’s fundamental right to the care, custody, and management of his or her children. Grandparent visitation statutes have been, and continue to be, subjected to constitutional challenges.
The Supreme Court of Alabama in Ex parte E.R.G., 73 So. 3d 634, 86 A.L.R.6th 651 (Ala. 2011), cert. denied, 132 S. Ct. 1535, 182 L. Ed. 2d 161, (2012), held that a grandparent visitation statute violated the fundamental due process rights of parents and therefore was unenforceable, by not including a presumption in favor of parents when deciding questions of visitation, by looking only to the best interests of the child, and by substituting the judge for the parents in applying the best-interests standard, and also by not requiring a showing of a compelling state interest in awarding visitation to grandparents or a showing that application of the statute was the least restrictive means of achieving any state interest.
This annotation collects and analyzes all cases that have addressed the validity of grandparent visitation statutes.