In a recent Alabama Court of Civil Appeals opinion, Weldon v. Ballow, on October 30, 2015, the Alabama Court of Civil Appeals was faced with a challenge that the Grandparent Visitation Act was “unconstitutional on its face – that is it always operated unconstitutionally.”

When a challenge comes to the Alabama Court of Civil Appeals as a Constitutional challenge, the Court views it without regard to the lower Circuit Court's Decision. However, the Alabama Court of Civil Appeals presumes that Acts of the Alabama Legislature are constitutional and the court must find that a fundamental right has been violated beyond a reasonable doubt to declare it unconstitutional.

The right for a parent to parent a child is a fundamental right. In 2011, the Alabama Court of Civil Appeals struck down Ala. Code 1975, § 30-3-4.1 (Grandparent Visitation) as unconstitutional. The Alabama State Legislature attempted to cure due process issues with amendments, of which Weldon v. Ballow, challenges their Constitutionality.

In Alabama, the law requires that clear and convincing evidence be required to declare a parent unfit. The opinion of the Court of Civil Appeals spent a decent amount of time stating that for a third-party to intervene in a parent's right to parent a child, a court cannot grant custody to a grandparent (or other third-party) without first declaring the parent unfit. In other words, they cannot look at the best interests of the child without first declaring the parent unfit.

The case law of Troxel led us to apply a standard that a fit parent operates in the best interests of their children. Additionally, the best interest of the child standard only applies when evaluating the best interests of the child as it relates to their two fit parents, not a third party such as a grandparent.

The Alabama Court of Civil Appeals held that the Grandparent Visitation Act, as written, allows a trial Court judge to supersede a parent's fundamental right to parent their child based on the trial Court's opinion that it was in the best interest of the child without showing the parent unfit. Therefore, the Alabama Court of Civil Appeals held that the Grandparent Visitation Act is unconstitutional.