In Ex parte E.R.G., [Ms. 1090883, June 10, 2011] ___ So. 3d ___ (Ala. 2011) the Court found that the right of a fit parent to determine, among other things, who has contact with their child is a “fundamental”  right and therefore any law interfering with that right must pass the “strict scrutiny” test to be constitutional.  This test is the most stringent one a court applies to determine the validity of a statute and our Supreme Court held that it was not met in this case.

The question of how this ruling affects older cases where grandparent visitation has already been awarded was recently addressed in Burnette v. Burnett, [Ms. 2100935, December 9, 2011] ___So. 3d___ (Ala. Civ. App. 2011).  The Alabama Court of Civil Appeals held that a change in substantive law, such as a finding that a statute is unconstitutional, should be applied retroactively.  As a result, the court overturned a previous award of visitation to grandparents.

Interestingly, the Alabama Legislature amended the grandparent visitation statute to make it more difficult for grandparents to get visitation.  The court in Burnett mentioned this and specifically stated that they were not addressing the question of whether or not the amendments to the statute were constitutional since they were not in effect at the time of that decision.

What does this mean for parents and grandparents dealing with visitation issues?  It’s good for parents and definitely not good for grandparents.  Any parent who does not want to continue sending their child to visit grandparents can now file a motion to terminate that visitation order and have a good chance of succeeding.  Grandparents who are still willing to fight for visitation will have to rely on the recent amendments to the statute and be willing to defend the constitutionality of those amendments until our courts determine whether the statute will survive.

If you are the non-custodial parent and you have to move away from your children, then this can be the basis of a motion to reduce your child support.  That is especially true if you are going to be paid less money to work at your new job.   In that case you can request a reduction for both reasons.  Of course, anytime you are divorced and there are children involved, there is always a chance that you will have further disagreements that result in potential litigation before a judge.  As a result, documenting these extra expenses with receipts, bank records and/or credit card statements is essential to giving yourself a chance to get the judge to agree with your position.  Remember, the person paying child support is always the one that bears the burden to prove payment of support no matter what form.     

Travel costs can also be important if you are the custodial parent and you are the one that is moving.  If you notify your Ex that you intend to move and they object, litigation attempting to get a judge to allow the move can be complicated, time consuming and expensive.  Offering to reduce the child support they are paying as a way to get them to agree to the move is one of many tools you can use to settle the dispute.

It turns out she was having a Skype video conversation with her Uncle who lives in Boston, Massachusetts.  As I leaned in to view the screen I saw my brother-in-law and also saw myself in the bottom of the screen.  I waved and said hello and he did the same back to me.  Amazing!

I have had several opportunities to put provisions in agreement divorces or relocation case settlements that obligate one party or the other to have broadband connections to facilitate communications with the other non-custodial parent but this was my first personal experience with it in video form.  It really was a great way to communicate and was much better than a simple phone call would have been.

Alabama has no statutory obligation requiring a court to consider Skype or other forms of ”virtual visitaion.”  I am also not aware of a published opinion where this was required by a judge after a hearing.  However, with the economy being in the condition it is, causing both custodial and non-custodial parents to consider relocating to find jobs, the technology that allows this sort of communication can help improve an otherwise bad situation.  The technology has defenitely come a long way.  Video conversations are certaily no substitution for spending time with your children but they absolutely can help give the feeling that your children are not so far away.

It is one of the toughest tasks that accompanies a divorce.  How do we tell the children? I recently came across a good article that advised parents facing divorce to avoid these three mistakes when telling the children:

1. Pressuring the children to make a choice,
2. Forgetting to emphasize that the children did not cause the divorce, and
3. Sharing information that only adults should be aware of.

You can read the entire article here.  In the article, the author elaborates on each point. I want to specifically emphasize the third point.  Divorce attorneys see this mistake made all of the time (sharing information with the children that only adults should be aware of).  It is typically done when one parent is hurt and mad at the other because they have somehow been wronged.  Often it is when adultery is involved.  The parent decides to tell the children the reason mommy and daddy are getting  divorce is because “your father has a girlfriend” (or something like that).  When asked why in the world they would tell their children this, they justify it by saying, “the children deserve to know the truth” or “I was just being honest with them.”

DO NOT DO THIS. Really.  It is incredibly selfish and immature and it hurts your children.  I know there may be some circumstances where it may be necessary.  Maybe the child is 17 and the affair was with a teacher at the school and so all of her friends are going to find out (yes, I’ve seen it happen).  But, even in those situations, slow down. Check your motivation.  Are you really protecting your child by telling her?  Is it really necessary? I find that often it is not.  Don’t do it to your children.  The divorce is going to be hard enough on them.

Finally, I would add one more to the author’s list: Remind them that both mom and dad still love them. Children in divorce need to be reminded that the breakup of the marriage does not mean that either parent no longer loves them.  This is VERY important.  Even if you are the spouse who did not want the divorce, make sure they know that the other spouse still loves them and the divorce does not mean they don’t.  They need to hear that.

NOTE: The author of the article offers some resources at the end of the article to assist in telling the children about divorce. I have not reviewed them myself, but I have talked to the author in the past and I have heard very good reports about those resources.  You may want to check them out if you are facing divorce and are not sure how to tell the kids.