Opinion
No. 2030304.
Decided July 16, 2004.
Appeal from Madison Juvenile Court (CS-00-306.01).
This is a grandparent-visitation case. J.W.J., Jr., is the father of P.F.R. ("the child"), a four-year-old girl. P.K.R. and P.H.R. are the child's maternal grandparents. The child's mother died in December 2002, when the child was two and one-half years old.
The child's parents were never married. Before her death, the mother had custody of the child; the father had visitation rights and paid child support. During the mother's pregnancy and after the child's birth, the mother and the child lived in the maternal grandparents' home. The maternal grandparents cared for the child while the mother attended college and worked part-time. After the mother's death, the father assumed custody of the child and brought the child to live with him in the home of his parents (the child's paternal grandparents).
In January 2003, the maternal grandparents petitioned for grandparent-visitation rights pursuant to § 30-3-4.1, Ala. Code 1975. The juvenile court entered a pendente lite order granting the maternal grandparents visitation with the child on the first and third weekends of each month. After a hearing, the court entered a judgment granting the maternal grandparents the following rights of visitation:
"the second weekend of each month and the fifth weekend of each month (during 2004 the months of January, May, July and October, each of which have a fifth week). Visitation shall begin at 6:00 p.m. on Friday and continue until 7:00 a.m. on the following Monday. Upon enrollment of the child in school, the [maternal] grandparents may pick the child up at school/day care on Friday, and return the child to school/day care on the following Monday morning. At all other times the child shall be picked up at the home of her father/paternal grandparents and returned to the same."
The court also granted the maternal grandparents one week of visitation during the Christmas season, daytime visitation on Mother's Day, and two weeks of visitation in the summer, beginning on the Monday immediately following Father's Day. The judgment further provides:
"In addition to the schedule of visitation, the [maternal] grandparents shall be allowed reasonable telephone contact with the minor child. Such telephone contact may not exceed two (2) telephone calls per week of a reasonable duration, unless more contact is agreed upon by the parties. Neither the father nor the maternal grandparents shall participate in, listen in on, or illegally record any telephone calls to the child."
I.
The maternal grandparents presented clear and convincing evidence that, before the mother's death, the child had lived in their home and had been cared for by them, that the child had a close and loving relationship with them, and that a termination of or undue limitation upon that relationship would be harmful to the child. The father does not contest the juvenile court's finding that it is in the child's best interest to have visitation with the maternal grandparents; he argues only that the amount of visitation awarded to the maternal grandparents, which he says is 62 days per year, is excessive.
The father asserts that, in determining the propriety of the extent of an award of grandparent visitation, our standard of review is whether the trial court abused its discretion; the maternal grandparents do not contest that assertion. Therefore, we will apply the abuse-of-discretion standard in this case.
Given the child's young age, the untimely death of her mother, and her undisputedly close relationship with her maternal grandparents, we conclude that the amount of visitation awarded to the maternal grandparents, although approaching the amount of visitation routinely granted to noncustodial parents, was not excessive. See Woodell v. Parker, 860 So.2d 781, 790 (Miss. 2003) (holding that a judgment awarding grandparents visitation of one weekend per month, every other spring-break holiday, the Friday and Saturday following Thanksgiving, the five days following Christmas, and two weeks during the summer was not excessive). Accordingly, we hold that the juvenile court did not abuse its discretion by awarding the maternal grandparents 62 days of visitation per year.
The father also argues that the judgment providing for extended weekend visitation — from Friday afternoon through Monday morning — will, once the child enters school, deprive him of the parental right to oversee the child's homework on Sunday evenings and to take the child to school on Monday mornings. That argument is premature. The child is not yet in school. If the current visitation schedule presents a problem when the child enters school, § 30-3-4.1(e), Ala. Code 1975, provides the father with a remedy. That section provides:
"After visitation rights have been granted to any grandparent, the legal custodian, guardian, or parent of the child may petition the court for revocation or amendment of the visitation rights, for good cause shown, which the court, in its discretion, may grant or deny."
II.
The father next contends that the juvenile court abused its discretion by awarding visitation to the maternal grandparents that will deprive him of the ability to spend his birthday, June 30, and Father's Day, which he incorrectly says is always the second Sunday in June, with the child. The judgment specifically refers to Father's Day, providing that the maternal grandparents' summer visitation will begin on the day after Father's Day. Although the judgment makes no reference to "June 30," it is conceivable that that day could fall either on a fifth weekend in June or within the 14-day summer visitation period commencing the day after Father's Day. We therefore remand the cause and instruct the juvenile court to add a provision to its judgment specifically excluding the father's birthday from the maternal grandparents' schedule of visitation.
Father's Day, in fact, is celebrated on the third Sunday in June.
III.
The father maintains that the juvenile court abused its discretion by not ordering the maternal grandparents to inform him of where the child is to be kept during the maternal grandparents' visitation periods. In our judgment, the father is entitled to such information. See, e.g.,L.B.S. v. L.M.S., 826 So.2d 178 (Ala.Civ.App. 2002) (plurality opinion). It could be argued that the following provision of the judgment implicitly requires the father to be so informed by the maternal grandparents:
"The [maternal] grandparents may take the child to such reasonable activities as suitable for a child of her age. The father shall provide suitable clothing upon receiving appropriate prior notification of such activity."
Nevertheless, in order to clarify any uncertainty, we direct the juvenile court, on remand, to amplify its judgment to require that the maternal grandparents notify the father regarding the location of and planned activities for the child during the times of visitation.
The father also claims that the juvenile court erred by not providing him with the right of reasonable telephone access to the child during the times when the maternal grandparents have visitation. This right falls within the parental prerogative discussed in our prior grandparent-visitation cases, see, e.g., L.B.S. v. L.M.S., supra, and should, on remand, also be specifically provided for in the judgment.
IV.
The father argues that the juvenile court abused its discretion by preventing him from listening in on or tape-recording the telephone conversations between the maternal grandparents and the child. At trial, the father referred to a tape-recording he had made of a telephone conversation between the maternal grandparents and the child. On appeal, the father argues that, during that telephone conversation, the maternal grandparents used "baby talk" with the child and referred to their home as "[the child's] house." The father did not offer the recording into evidence or make a proffer to the juvenile court of what the recording, if admitted, would show.
Dr. Frankie Preston, a clinical psychologist who interviewed the child, determined that the child was "very bright" and "exceptionally articulate." Dr. Preston was asked whether it would give him cause for concern that the maternal grandparents had used baby talk with the child and had referred to their home as "[the child's] house." Preston replied that such a conversation would give him cause for concern.
The father does not argue that the requirement that grandparent visitation be narrowly tailored to prevent the harm that would occur in its absence required the juvenile court to structure some or all of the child's physical visitation with the maternal grandparents as supervised visitation. However, he does argue that, as the child's father, he should have the right to monitor his child's telephone conversations and, in effect, be present during the child's telephonic visits with the maternal grandparents. The record in this case does not demonstrate that "unsupervised" telephone conversations between the child and the maternal grandparents are necessary to avoid substantial harm that would result in the absence of unsupervised conversations, and we therefore conclude that the juvenile court's judgment in this regard violated the father's fundamental rights as a parent, § 13A-11-31, Ala. Code 1975, Alabama's criminal eavesdropping statute, notwithstanding.
At its core, a parent's right to the care, custody, and control of his or her child includes the right to direct the child's conduct and to guide and control the child's activities and associations, so long as such direction and control is not harmful to the child. Nowhere is this more true than within a parent's own home. Accordingly, since the use of telephones in private homes began, parents have placed conditions and restrictions on their children's use of their telephones. A child's telephone conversations with another parent, especially when the conversation has been sanctioned by a court order, is a different matter. The other parent obviously has his or her own fundamental rights with respect to the care, custody, and control of the child. Cases such as Stinson v. Larson, [Ms. 2020918, March 9, 2004] ___ So.2d ___ (Ala.Civ.App. 2004), and Silas v. Silas, 680 So.2d 368 (Ala.Civ.App. 1996), therefore, are readily distinguishable from the present case.
On remand, the juvenile court is instructed to allow the father to monitor or record the child's telephone conversations with the maternal grandparents.
V.
Last, the father takes issue with a statement made by the trial judge that the parties would have to learn to "coparent" the child. At the conclusion of the hearing, the trial judge stated:
"[The child's guardian ad litem] in his wisdom has pointed out that you folks can learn to share this child and she will benefit from all of you being in her life. I totally subscribe to the theory that it takes a whole village to raise a child. This child cannot have too many good people in her life or people who care for her and cherish her and want to look out for her best interest.
"Just as we did not foresee her mother not being available, let's hope that in the future we don't have to deal with anyone else not being available because we are going to learn to coparent this child and to coexist, if for no other reason than it would be best for this child.
". . . .
". . . [P]lease, let's approach this from a mature standpoint. It is my intention to be prayerful in reflecting on the information I have heard, and I will ask that you do the same and that we all try to move forward in doing what's best for [the child]."
Custody of the child was not at issue during the hearing. At several points during the trial, the court interrupted the questioning of witnesses to state that there was no question regarding the father's fitness as a parent, that only visitation was at issue, and that the parties should confine themselves to the evidence material to that issue. Furthermore, the court cut off testimony regarding whether the maternal grandparents were contesting the father's petition to change the surname of the child, stating, "The Court hereby grants the request to change the name of the child to the name of the father. Does that resolve that issue? Move on."
Taken in context, it is evident that the trial judge's remark about "coparenting" was intended to remind the parties only that they needed to work together for the good of the child. There is nothing in the juvenile court's judgment that indicates that the court meant for the maternal grandparents to usurp or infringe upon the father's parental rights. The judgment states:
"It is the Order of this Court that neither party shall intrude upon the privacy of the other, nor prevent or restrict in any way the other's rights granted by this Court or any Court of competent jurisdiction."
The judgment of the juvenile court is affirmed in part and reversed in part, and the cause is remanded. On remand, the juvenile court is instructed to add the following provisions to its judgment: a provision specifically excluding the father's birthday from the maternal grandparents' schedule of visitation; a provision requiring the maternal grandparents to notify the father regarding the location of and planned activities for the child during the times of visitation; a provision granting the father reasonable telephone access to the child during the times that the maternal grandparents have visitation; and a provision allowing the father to monitor or record the child's telephone conversations with the maternal grandparents.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
Crawley and Pittman, JJ., concur.
Murdock, J., concurs in part and concurs in the result in part, with opinion.
Yates, P.J., concurs in the result, with opinion.
Thompson, J., concurs in the result, without opinion.
In L.B.S., four members of this court determined that the grandparent-visitation statute at issue in that case, § 30-3-4.1, Ala. Code 1975, could, consistent with the fundamental constitutional right of parents to the care, custody, and control of their own children, be applied to allow the courts of this state to award grandparent visitation where there is clear and convincing evidence that, in the absence of the court-ordered visitation, substantial harm would occur to the child and where the visitation is narrowly tailored to remedy the substantial harm that would occur in its absence. See L.B.S., 826 So.2d at 187-99 (Yates, P.J., and Murdock, J., concurring in the judgment of reversal only). The last of these requirements — that the grandparent visitation be narrowly tailored to remedy the substantial harm that would occur in its absence — reflects the principle that
The four judges who agreed that an award of grandparent visitation could be upheld if the described standard is satisfied were Presiding Judge Yates, this judge, Judge Thompson, who authored the main opinion, and Judge Pittman, who concurred in the main opinion. Judge Thompson, joined by Judge Pittman, explained in the main opinion in L.B.S. that he would uphold orders providing for grandparent visitation in a larger universe of cases than would Presiding Judge Yates and this judge. Among other things, Judge Thompson opined that it is not always necessary to make a showing of substantial harm in order to justify an award of grandparent visitation. See L.B.S., 826 So.2d at 186-87 n. 5.
"the interference with a fundamental right for the purpose of serving a compelling state interest must be done in a manner that is least restrictive of the fundamental right and most closely tailored to serve that compelling state interest. See Washington v. Glucksberg, 521 U.S. 702, [ 117 S.Ct. 2258,] 138 L.Ed.2d 772 (1997); Beagle v. Beagle, 678 So.2d [1271,] at 1275 [(Fla. 1996)] (recognizing in the context of a challenge to Florida's grandparent-visitation statute that the statute must meet a compelling state interest `through the use of the least intrusive means'). Limiting a court's interference with parental authority to the extent necessary, or reasonably necessary, to prevent or alleviate the adjudged harm would result in less interference with parental authority. Compliance with such a requirement conceivably could entail adjustments to the number or duration of visits, limitations on the nature of the visitation (e.g., a restriction of visitation to supervised visits only), and/or to other conditions or restrictions."
L.B.S., 826 So.2d at 192 (Murdock, J., concurring in the judgment of reversal only) (footnote omitted). I note that the results reached in Parts II, III, and IV of the main opinion are consistent with this requirement.
The issues raised by the father in this appeal that are discussed in parts II, III and IV of the main opinion, as well as those discussed in Part I, all are concerned with the extent and nature of the visitation awarded by the juvenile court. All parties acquiesce in the application of an abuse of discretion standard as this court's appellate standard of review of the juvenile court's judgment as to those issues. We therefore do not have before us the question whether abuse of discretion is the correct standard generally for appellate review of whether the evidence is sufficient to support the various findings required of trial courts in cases of this nature.
As the main opinion notes and as Judge Yates emphasizes in her special writing, the father does not argue that the juvenile court erred in awarding visitation to the maternal grandparents. Specifically, the father does not argue that the evidence favoring the maternal grandparents' claim to visitation rights was such that the juvenile court could not have reasonably found that it clearly and convincingly supported a determination that visitation was warranted.
The issues presented on appeal in this case are postured in such a way that I concur in the main opinion, except as to the discussion in Part V thereof. I concur in the result reached with respect to the issue discussed in Part V.
The father does not argue that the juvenile court erred in awarding visitation to the maternal grandparents. Therefore, we cannot address the issue whether the maternal grandparents presented sufficient evidence that absent court-ordered visitation the child would be substantially harmed. See L.B.S. v. L.M.S., 826 So.2d 178 (Ala.Civ.App. 2002) (Yates, P.J., and Murdock, J., concurring in the judgment of reversal only). Instead, the father raises arguments concerning the terms of the maternal grandparents' visitation. I agree that the case should be remanded with instructions for the juvenile court to clarify the terms of visitation.