Ex parte S.H.
S.H. In re: K.G.
Jefferson Circuit Court, CV-17-900409
PETITION FOR WRIT OF MANDAMUS
2016, the Jefferson Juvenile Court ("the juvenile
court") determined that L.G. ("the child") was
a dependent child and awarded custody of the child to S.H.
("the maternal grandmother"). At that time,
according to the 2016 judgment, both of the child's
parents were deceased. In February 2017, K.G. ("the
paternal grandmother") instituted in the Jefferson
Circuit Court ("the circuit court") an action
against the maternal grandmother in which the paternal
grandmother sought to establish grandparent visitation
pursuant to the Grandparent Visitation Act ("the
GVA"), Ala. Code 1975, § 30-3-4.2. The maternal
grandmother filed a motion to dismiss the paternal
grandmother's action in March 2017, which motion she
renewed in July 2017 and in March 2019. On July 2, 2019,
the circuit court entered an order denying the maternal
grandmother's motion to dismiss; in that same order, the
circuit court awarded the paternal grandmother pendente lite
grandparent visitation pending a trial to be held in January
2020. The maternal grandmother filed in this court a petition
for the writ of mandamus on August 5, 2019. Although we
called for answers to the maternal grandmother's
petition, none were filed.
"'"'A writ of mandamus is an extraordinary
remedy that is available when a trial court has exceeded its
discretion. Ex parte Fidelity Bank, 893 So.2d 1116,
1119 (Ala. 2004). A writ of mandamus is "appropriate
when the petitioner can show (1) a clear legal right to the
order sought; (2) an imperative duty upon the respondent to
perform, accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) the properly invoked
jurisdiction of the court." Ex parte BOC Group,
Inc., 823 So.2d 1270, 1272 (Ala.
Ex parte Gentry, 228 So.3d 1016, 1022 (Ala. Civ.
App. 2017) (quoting Ex parte Brown, 963 So.2d 604,
606-07 (Ala. 2007), quoting in turn Ex parte Rawls,
953 So.2d 374, 377 (Ala. 2006), quoting in turn Ex parte
Antonucci, 917 So.2d 825, 830 (Ala. 2005)). A petition
for the writ of mandamus is a proper vehicle for reviewing an
order awarding pendente lite grandparent visitation. Ex
parte Gentry, 238 So.3d 66, 72 (Ala. Civ. App. 2017);
Ex parte McElrath, 258 So.3d 364, 367 (Ala. Civ.
petition, the maternal grandmother first argues that the
circuit court lacks jurisdiction over the paternal
grandmother's action. She asserts that the juvenile court
acquired jurisdiction over the child pursuant to its exercise
of dependency jurisdiction and that, because it has not
terminated its jurisdiction over the child, the circuit court
could not attain jurisdiction over a matter involving the
child. Secondly, the maternal grandmother argues that,
because custody of the child is not vested in a parent, the
GVA does not operate in this instance to permit the paternal
grandmother to seek visitation. Finally, the maternal
grandmother asserts that, if the GVA does apply, the circuit
court failed to properly apply the GVA to award the paternal
grandmother pendente lite visitation because the circuit
court failed to hold an evidentiary hearing and lacked
evidence supporting the requirements for an award of pendente
lite grandparent visitation.
the maternal grandmother's second issue dispositive of
her petition. In essence, the maternal grandmother contends
that the GVA is worded in such a way as to apply solely to
conflicts regarding visitation between grandparents and
parents. Thus, she says, the paternal grandmother cannot
utilize the GVA to seek visitation with the child because,
although she is the child's legal custodian, the maternal
grandmother is not a parent.
provides, in pertinent part:
"(b) A grandparent may file an original action in a
circuit court where his or her grandchild resides or any
other court exercising jurisdiction with respect to the
grandchild or file a motion to intervene in any action when
any court in this state has before it any issue concerning
custody of the grandchild, including a domestic relations
proceeding involving the parent or parents of the grandchild,
for reasonable visitation rights with respect to the
grandchild if any of the following circumstances exist:
"(1) An action for a divorce or legal separation of the
parents has been filed, or the marital relationship between
the parents of the child has been severed by death or
"(2) The child was born out of wedlock and the
petitioner is a maternal grandparent of the child.
"(3) The child was born out of wedlock, the petitioner
is a paternal grandparent of the child, and paternity has
been legally established.
"(4) An action to terminate the parental rights of a
parent or parents has been filed or the parental rights of a
parent has been terminated by court order; provided, however,
the right of the grandparent to seek visitation terminates if
the court approves a petition for adoption by an adoptive
parent, unless the visitation rights are allowed pursuant to
[Ala. Code 1975, §] 26-10A-30."
does not define the term "parent." Generally,
"'[w]ords used in a statute must be given their
natural, plain, ordinary, and commonly understood
meaning.'" Blue Cross & Blue Shield of
Alabama, Inc. v. Nielsen, 714 So.2d 293, 296 (Ala. 1998)
(quoting IMED Corp. v. Systems Eng'g Assocs.
Corp., 602 So.2d 344, 346 (Ala. 1992)). The traditional
dictionary definition of "parent" includes both
"one that begets or brings forth offspring" and
"a person who brings up and cares for another."
Merriam-Webster's Collegiate Dictionary 900
(11th ed. 2003). Thus, the term "parent" could be
read narrowly to refer to biological parents or expansively
to include within its ambit persons who, like the maternal
grandmother, rear children in the absence of their parents.
guided in our efforts to discern the intended meaning of the
term "parent" as used in the GVA by the following
"'[T]he rule is well recognized that in the
construction of a statute, the legislative intent is to be
determined from a consideration of the whole act with
reference to the subject matter to which it applies and the
particular topic under which the language in question is
found. The intent so deduced from the ...