Alabama 2022 Regular Session

Alabama House Bill HB263 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	1 HB263
2	2	2 216495-1
3	3	3 By Representative Treadaway
4	4	4 RFD: Judiciary
5	5	5 First Read: 03-FEB-22
6	6
7	7	Page 0 1 216495-1:n:01/25/2022:GP/ma LSA2022-244
8	8	2
9	9	3
10	10	4
11	11	5
12	12	6
13	13	7
14	14	8 SYNOPSIS: Under existing law, the visitation rights of
15	15	9 an adoptee's grandparents terminate upon the
16	16	10 adoptee's adoption by certain individuals.
17	17	11 This bill would allow the court to grant
18	18	12 visitation rights to a biological grandparent if
19	19	13 the court finds that visitation is in the best
20	20	14 interest of the adoptee.
21	21	15
22	22	16 A BILL
23	23	17 TO BE ENTITLED
24	24	18 AN ACT
25	25	19
26	26	20 Relating to visitation; to amend Section 30-3-4.2,
27	27	21 Code of Alabama 1975, to allow the court to grant visitation
28	28	22 rights to an adoptee's grandparent in certain situations.
29	29	23 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
30	30	24 Section 1. Section 30-3-4.2, Code of Alabama 1975,
31	31	25 is amended to read as follows:
32	32	26 "§30-3-4.2.
33	33	Page 1 1 "(a) For the purposes of this section, the following
34	34	2 words have the following meanings:
35	35	3 "(1) GRANDPARENT. The parent of a parent, whether
36	36	4 the relationship is created biologically or by adoption.
37	37	5 "(2) HARM. A finding by the court, by clear and
38	38	6 convincing evidence, that without court-ordered visitation by
39	39	7 the grandparent, the child's emotional, mental, or physical
40	40	8 well-being has been, could reasonably be, or would be
41	41	9 jeopardized.
42	42	10 "(b) A grandparent may file an original action in a
43	43	11 circuit court where his or her grandchild resides or any other
44	44	12 court exercising jurisdiction with respect to the
45	45	13 grandchild or file a motion to intervene in any action when
46	46	14 any court in this state has before it any issue concerning
47	47	15 custody of the grandchild, including a domestic relations
48	48	16 proceeding involving the parent or parents of the grandchild,
49	49	17 for reasonable visitation rights with respect to the
50	50	18 grandchild if any of the following circumstances exist:
51	51	19 "(1) An action for a divorce or legal separation of
52	52	20 the parents has been filed, or the marital relationship
53	53	21 between the parents of the child has been severed by death or
54	54	22 divorce.
55	55	23 "(2) The child was born out of wedlock and the
56	56	24 petitioner is a maternal grandparent of the child.
57	57	25 "(3) The child was born out of wedlock, the
58	58	26 petitioner is a paternal grandparent of the child, and
59	59	27 paternity has been legally established.
60	60	Page 2 1 "(4) An action to terminate the parental rights of a
61	61	2 parent or parents has been filed or the parental rights of a
62	62	3 parent has been terminated by court order; provided, however,
63	63	4 the right of the grandparent to seek visitation terminates if
64	64	5 the court approves a petition for adoption by an adoptive
65	65	6 parent, unless the visitation rights are allowed pursuant to
66	66	7 Section 26-10A-30. either of the following circumstances
67	67	8 exists:
68	68	9 "a. The visitation rights are allowed pursuant to
69	69	10 Section 26-10A-30.
70	70	11 "b. The court, by clear and convincing evidence,
71	71	12 finds that preserving a biological grandparent and adoptee's
72	72	13 relationship is in the best interest of the adoptee, and that
73	73	14 harm would befall the adoptee without court-ordered
74	74	15 visitation.
75	75	16 "(c)(1) There is a rebuttable presumption that a fit
76	76	17 parent's decision to deny or limit visitation to the
77	77	18 petitioner is in the best interest of the child.
78	78	19 "(2) To rebut the presumption, the petitioner shall
79	79	20 prove by clear and convincing evidence, both of the following:
80	80	21 "a. The petitioner has established a significant and
81	81	22 viable relationship with the child for whom he or she is
82	82	23 requesting visitation.
83	83	24 "b. Visitation with the petitioner is in the best
84	84	25 interest of the child.
85	85	Page 3 1 "(d) To establish a significant and viable
86	86	2 relationship with the child, the petitioner shall prove by
87	87	3 clear and convincing evidence any of the following:
88	88	4 "(1) a. The child resided with the petitioner for at
89	89	5 least six consecutive months with or without a parent present
90	90	6 within the three years preceding the filing of the petition.
91	91	7 "b. The petitioner was the caregiver to the child on
92	92	8 a regular basis for at least six consecutive months within the
93	93	9 three years preceding the filing of the petition.
94	94	10 "c. The petitioner had frequent or regular contact
95	95	11 with the child for at least 12 consecutive months that
96	96	12 resulted in a strong and meaningful relationship with the
97	97	13 child within the three years preceding the filing of the
98	98	14 petition.
99	99	15 "(2) Any other facts that establish the loss of the
100	100	16 relationship between the petitioner and the child is likely to
101	101	17 harm the child.
102	102	18 "(e) To establish that visitation with the
103	103	19 petitioner is in the best interest of the child, the
104	104	20 petitioner shall prove by clear and convincing evidence all of
105	105	21 the following:
106	106	22 "(1) The petitioner has the capacity to give the
107	107	23 child love, affection, and guidance.
108	108	24 "(2) The loss of an opportunity to maintain a
109	109	25 significant and viable relationship between the petitioner and
110	110	26 the child has caused or is reasonably likely to cause harm to
111	111	27 the child.
112	112	Page 4 1 "(3) The petitioner is willing to cooperate with the
113	113	2 parent or parents if visitation with the child is allowed.
114	114	3 "(f) The court shall make specific written findings
115	115	4 of fact in support of its rulings.
116	116	5 "(g)(1) A grandparent or grandparents who are
117	117	6 married to each other may not file a petition seeking an order
118	118	7 for visitation more than once every 24 months absent a showing
119	119	8 of good cause. The fact that a grandparent or grandparents who
120	120	9 are married to each other have petitioned for visitation shall
121	121	10 not preclude another grandparent from subsequently petitioning
122	122	11 for visitation within the 24-month period. After an order for
123	123	12 grandparent visitation has been granted, the parent, guardian,
124	124	13 or legal custodian of the child may file a petition requesting
125	125	14 the court to modify or terminate a grandparent's visitation
126	126	15 time with a grandchild.
127	127	16 "(2) The court may modify or terminate visitation
128	128	17 upon proof that a material change in circumstances has
129	129	18 occurred since the award of grandparent visitation was made
130	130	19 and a finding by the court that the modification or
131	131	20 termination of the grandparent visitation rights is in the
132	132	21 best interest of the child.
133	133	22 "(h) The court may award any party reasonable
134	134	23 expenses incurred by or on behalf of the party, including
135	135	24 costs, communication expenses, attorney's fees, guardian ad
136	136	25 litem fees, investigative fees, expenses for court-appointed
137	137	26 witnesses, travel expenses, and child care during the course
138	138	27 of the proceedings.
139	139	Page 5 1 "(i)(1) Notwithstanding any provisions of this
140	140	2 section to the contrary, a petition filed by a grandparent
141	141	3 having standing under Chapter 10A of Title 26, seeking
142	142	4 visitation shall be filed in probate court and is governed by
143	143	5 Section 26-10A-30, rather than by this section if either of
144	144	6 the following circumstances exists:
145	145	7 "a. The grandchild has been the subject of an
146	146	8 adoption proceeding other than the one creating the
147	147	9 grandparent relationship.
148	148	10 "b. The grandchild is the subject of a pending or
149	149	11 finalized adoption proceeding.
150	150	12 "(2) Notwithstanding any provisions of this section
151	151	13 to the contrary, a grandparent seeking visitation pursuant to
152	152	14 Section 12-15-314 shall be governed by that section rather
153	153	15 than by this section.
154	154	16 "(3) Notwithstanding any provisions of this section
155	155	17 to the contrary, a parent of a parent whose parental rights
156	156	18 have been terminated by a court order in which the petitioner
157	157	19 was the Department of Human Resources, shall not be awarded
158	158	20 any visitation rights pursuant to this section.
159	159	21 "(j) The right of a grandparent to maintain
160	160	22 visitation rights pursuant to this section terminates upon the
161	161	23 adoption of the child except as provided by Section 26-10A-30,
162	162	24 unless a biological grandparent proves to the court by clear
163	163	25 and convincing evidence that preserving the grandparent and
164	164	26 adoptee's relationship is in the best interest of the adoptee,
165	165	Page 6 1 and that harm would befall the adoptee without court-ordered
166	166	2 visitation.
167	167	3 "(k) All of the following are necessary parties to
168	168	4 any action filed under this section:
169	169	5 "(1) Unless parental rights have been terminated,
170	170	6 the parent or parents of the child.
171	171	7 "(2) Every other person who has been awarded custody
172	172	8 or visitation with the child pursuant to court order.
173	173	9 "(3) Any agency having custody of the child pursuant
174	174	10 to court order.
175	175	11 "(l) In addition, upon filing of the action, notice
176	176	12 shall be given to all other grandparents of the child. The
177	177	13 petition shall affirmatively state the name and address upon
178	178	14 whom notice has been given.
179	179	15 "(m) Service and notice shall be made in the
180	180	16 following manner:
181	181	17 "(1) Service of process on necessary parties shall
182	182	18 be made in accordance with the Alabama Rules of Civil
183	183	19 Procedure.
184	184	20 "(2) As to any other person to whom notice is
185	185	21 required to be given under subsection (l), notice shall be
186	186	22 given by first class mail to the last known address of the
187	187	23 person or persons entitled to notice. Notice shall be
188	188	24 effective on the third day following mailing.
189	189	25 "(n) Notwithstanding the foregoing, the notice
190	190	26 requirements provided by this section may be limited or waived
191	191	27 by the court to the extent necessary to protect the
192	192	Page 7 1 confidentiality and the health, safety, or liberty of a person
193	193	2 or a child.
194	194	3 "(o) Upon filing an action under this section, after
195	195	4 giving special weight to the fundamental right of a fit parent
196	196	5 to decide which associations are in the best interest of his
197	197	6 or her child, the court may, after a hearing, enter a pendente
198	198	7 lite order granting temporary visitation rights to a
199	199	8 grandparent, pending a final order, if the court determines
200	200	9 from the evidence that the petitioner has established a
201	201	10 significant and viable relationship with the child for whom he
202	202	11 or she is requesting visitation, visitation would be in the
203	203	12 best interest of the child, and any of the following
204	204	13 circumstances exist:
205	205	14 "(1) The child resided with the grandparent for at
206	206	15 least six consecutive months within the three years preceding
207	207	16 the filing of the petition.
208	208	17 "(2) The grandparent was the caregiver of the child
209	209	18 on a regular basis for at least six consecutive months within
210	210	19 the three years preceding the filing of the petition.
211	211	20 "(3) The grandparent provided significant financial
212	212	21 support for the child for at least six consecutive months
213	213	22 within the three years preceding the filing of the petition.
214	214	23 "(4) The grandparent had frequent or regular contact
215	215	24 with the child for at least 12 consecutive months within the
216	216	25 three years preceding the filing of the petition.
217	217	26 "(p) As a matter of public policy, this section
218	218	27 recognizes the importance of family and the fundamental rights
219	219	Page 8 1 of parents and children. In the context of grandparent
220	220	2 visitation under this section, a fit parent's decision
221	221	3 regarding whether to permit grandparent visitation is entitled
222	222	4 to special weight due to a parent's fundamental right to make
223	223	5 decisions concerning the rearing of his or her child.
224	224	6 Nonetheless, a parent's interest in a child must be balanced
225	225	7 against the long-recognized interests of the state as parens
226	226	8 patriae. Thus, as applied to grandparent visitation under this
227	227	9 section, this section balances the constitutional rights of
228	228	10 parents and children by imposing an enhanced standard of
229	229	11 review and consideration of the harm to a child caused by the
230	230	12 parent's limitation or termination of a prior relationship of
231	231	13 a child to his or her grandparent."
232	232	14 Section 2. This act shall become effective on the
233	233	15 first day of the third month following its passage and
234	234	16 approval by the Governor, or its otherwise becoming law.
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