Grandparent Visitation Act — Constitutional Changes & What’s Current

“Facially Unconstitutional” to Reformed Statute: A Legal Overview for Alabama Families

By Paul A. Seckel, Attorney at Law
Posted Nov 02, 2015 – Updated for 2025

What Happened Historically?

In the case Weldon v. Ballow (Oct. 30, 2015), the Alabama Court of Civil Appeals held that the prior version of the Grandparent Visitation Act — codified at Ala. Code § 30‑3‑4.1 — was facially unconstitutional because it allowed courts to award visitation to grandparents over a fit parent’s objection simply by applying a “best interests of the child” test, without first finding the parent unfit. FindLaw Case Law+2Justia+2

Why was this a problem? Because the U.S. and Alabama Supreme Courts recognize that a parent’s right to raise and make decisions for their child is a fundamental constitutional right. The statute as written allowed courts to override that right without showing a compelling state interest or using the least restrictive means. American Bar Association+1

What Changed in Alabama Law?

Following Weldon and other challenges, Alabama’s legislature took action:

• In 2016, the old statute (§ 30-3-4.1) was repealed and replaced by Ala. Code § 30‑3‑4.2, effective August 1, 2016. Justia+1

• The new statute includes several key reforms:

  • It introduces the concept of harm: the court must find by clear and convincing evidence that without grandparent visitation the child’s emotional, mental, or physical well-being has been, could reasonably be, or would be jeopardized. Justia

  • It gives special weight to the decision of a fit parent regarding grandparent visitation, acknowledging the parent’s fundamental rights. Justia+1

  • It establishes criteria that grandparents must meet, such as proving they have a “significant and viable relationship” with the child and that the loss of that relationship is likely to cause harm. Justia+1

Why This Matters: Practical Impact

For families and legal practitioners in Alabama, these changes are very important:

• Grandparents no longer have an unfettered statutory right to visitation simply because a court thinks it’s in the “best interests” of the child when the parent objects.

• Instead, for a grandparent to succeed under § 30-3-4.2, they must clear a higher threshold of proof (clear and convincing evidence of harm) and show that the parent’s decision to deny visitation is outweighed by the child’s need.

• The statute continues to ensure that a fit parent’s decision is given “special weight”. This means courts must start from the presumption that the parent knows what’s best for their child, and only override that decision when the evidence is compelling.

• Attorneys should carefully analyze whether the parent is fit, whether the grandparent has standing, whether jurisdiction is correct (circuit vs juvenile court), and whether the petition complies with the statute’s requirements. For example, filing in the wrong court may result in dismissal. FindLaw Case Law

Key Statutory Provisions at a Glance (Under § 30-3-4.2)

• “Harm” is defined as a finding by the court, by clear and convincing evidence, that without visitation the child’s well-being would be jeopardized. Justia+1

• A grandparent may file an original petition or intervene in certain child-custody related proceedings. WomensLaw.org+1

• The statute mandates that the court must give “special weight” to a fit parent’s decision, and that the parent’s rights are fundamental. Justia

• Visitation may be awarded only if the grandparent proves:

  1. They have the capacity to provide love, affection, guidance;

  2. Loss of the relationship is likely to cause harm; and

  3. They are willing to cooperate with the parent. Justia

What Should You Do If You’re Facing a Grandparent Visitation Issue?

If you are a parent, grandparent, or other party involved in a grandparent-visitation matter:

• Parents: Understand that your decision about your child’s associations is given special respect under the law — and you have a strong constitutional foundation.

• Grandparents: Review carefully whether you meet standing (i.e., eligible to petition under the statute), whether you can show a “significant and viable relationship,” and whether you are prepared to prove “harm” under the updated statute.

• Attorneys: Ensure pleadings comply with § 30-3-4.2, verify jurisdiction (the statute often requires circuit court jurisdiction over visitation), and prepare to argue the “harm” standard. Also consider whether the petition is one of many within 24 months (note the statute’s limit on frequencies).

Contact Guntersville Law, LLC for Guidance

The law regarding grandparent visitation in Alabama has changed significantly. If you are navigating these issues, you need an attorney who understands both the old law, the new statute, and how courts currently interpret them in Marshall County and North Alabama.

📞 Call Guntersville Law, LLC at 256-571-1529 to schedule a $100, 30-minute consultation. We will review your situation, explain your rights or options, and help you move forward with confidence.

Note: This article is provided for informational purposes only and does not constitute legal advice. For advice specific to your situation, please speak directly with a qualified attorney.