The grandparent visitation bill must not be signed into law. As written this bill completely disregards the rights of fit parents. The state would have the power to interfere in every parent-child relationship in Alabama without any state interest being involved. Under this bill if a parent is an ideal parent in every regard they can still be forced to surrender to the court the authority to decide who their children spend time with. Under this bill a fit and loving parent who allows their children to regularly visit with grandparents they cannot even hint to the grandparents that such visits might not continue. If they do then the grandparents can file a petition with the court to force regular visits that if not complied with may result in the jailing of the parent pursuant to the court's contempt powers. Under this bill a grandparent is able to wield the incredible power of the state if they can show (1) that they have had regular contact with the child for 12 months, and (2) that the child's feelings could be hurt (emotional harm) if the grandparent does not continue to visit with the child. Our legislators must not console themselves and say that "surely, no judge would use this statute in so harmful a manner." However, experience tells us otherwise, and even without the benefit of experience the risk is too great. If a judge does undertake to use these powers granted herein who can stop him? The answer is no one; at least not anytime soon. The judge's ruling is protected in the first instance will be protected by the fact that there will be no jury there to monitor the situation. Further, in many cases these proceedings are not open to the public and can be done without any oversight by the public on the trial court level. Then if the matter is appealed the judge's use of power will be protected again under the ore tenus rule. This rule allows the appellate court to simply trust the trial court's assessment of the facts. Thereby the appeals court is free to say, "Well, I wasn't there at the trial so I have to believe that the child's feelings  might be hurt in the future if grandpa cannot come over to the house anymore." The only way the legal damage can be undone is by years of costly litigation and appeals. And once the litigation is over the family is left in pieces. They have just spent years warring against each other as enemies and now are left to find a way to be a family again. 

This bill as written grants incredible power to the state over intimate, personal, family relationships without even a pretense of preserving a state interest. It is hard to imagine a more invasive, authoritarian piece of legislation.

A copy of the bill is provided below.

As previously discussed the McLendon Standard is a rule of repose and strongly disfavors any change that would increase parenting time and promote the best interests of a child.  Alabama Code § 30-3-150 states that “[i]t is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage.” Further, McLendon is repugnant to the codified “general philosophy in this state that children need both parents, even after a divorce, established in [§] 30-3-150". Alabama Code § 30-3-160.

McLendon’s policy of disfavoring shared parenting and promoting limited contact between children and their fit, caring parents predates the adoption of the aforementioned code sections which were adopted in 1997 and 2004, respectively. Ex parte McLendon, 455 So.2d 863 (Ala.1984); Ala. Code § 30-3-150; and § 30-3­-160.  In short the legislature has abandoned the discriminatory language and stated intent of McLendon. Any conflict between McLendon and the more recently adopted code sections must be resolved in favor of the Code of Alabama. Baldwin County v. Jenkins, 494 So. 2d 584, 588 (Ala. 1986) (“the latest expression of the legislature is the law… Where a conflict exists between statutes, the last enactment must take precedence.”); citing Middleton v. General Water Works & Electric Corporation,  149 So. 351, cert. denied, 227 Ala. 219, 149 So. 352 (1933); and Laney v. Jefferson County, 32 So.2d 542 (1947)). Further, the separation of powers doctrine of the US Constitution dictates that it is the role of the legislature to make laws and the judiciary to interpret them. The legislature has spoken on the issue; therefore a parent’s rights must be enforced. See generally for the principle of the separation of powers doctrine Ex parte Christopher, [No. 1120387], ___So. 3d___ (Ala. 2013).

The McLendon standard is not founded on constitutional doctrines or principles, nor does it proclaim to be. McLendon has been overturned by statute and is thus void. Any attempt to reconcile McLendon with the Code would be a tortured one as the two occupy positions too opposite and too distant to be reconciled. Either the state (and thus its appendage the court) must favor shared parenting rights and responsibilities or it must abandon those priorities for some unstated cause to satisfy McLendon.