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.

Divorce and children

Just a short note today about a nice divorce resource I found.  If you have read the Alabama Family Law Blog long, you know that I care a lot about the kids of divorce.  Having been one myself, I am always concerned about how my client’s divorce case is affecting their children.  That is why I was excited to find this divorce resource on the web.  It is an article called, A Kid’s Guide to Divorce.  It is really written to the child (probably age appropriate for middle school and up). But, even if you have younger children, you and your spouse should read the article. It may give you some insight on how your children may be thinking as your family goes through divorce.

I have mentioned it here before, but frequently the children need to be reminded that the fact that mom and dad are getting a divorce, does not mean that they don’t love the kids.  The article correctly puts it this way, “It’s really important for kids to know that just because parents divorce each other, they’re not divorcing their kids. Some kids think that if their parents are divorcing, it means their moms and dads will want to leave them, too.” These are the types of things you need to know go though your child’s head as you go through a divorce.

In Alabama, many of our schools offer what is called a Rainbows program. It is a divorce support program for children.  I have heard a lot of good things from my divorce clients about that program. If you are facing divorce, I encourage you to see if your local school offers that or a similar program and/or to consider a therapist if your child is having difficulty adjusting to the divorce.

photo credit: Pink Sherbet Photography