WRIT DENIED. NO OPINION.
MOORE, C.J., and PARKER and MURDOCK, JJ., concur.
SHAW, J., concurs specially.
STUART, BOLIN, and MAIN, JJ., dissent.
WISE, J., recuses herself.
SHAW, Justice (concurring specially).
I concur with this Court's decision to deny Attorney General Luther Strange's petition for a writ of certiorari seeking review of a decision of the Court of Civil Appeals.
In this case, the Court of Civil Appeals held that the Alabama Grandparent Visitation Act ("the GVA"), as amended in 2011 by Act No. 2011-539 and Act No. 2011-562, Ala. Acts 2011, is unconstitutional. Weldon v. Ballow, [Ms. 2140471, October 30, 2015] 200 So.3d 654 (Ala.Civ.App.2015). In my writing in this Court's decision in Ex parte E.R.G., 73 So.3d 634, 675-76 (Ala.2011), which held unconstitutional the pre-2011 amended version of the GVA, I stated:
73 So.3d at 675-76 (Shaw, J., concurring in the result) (footnote omitted). I also quoted in my writing in E.R.G. from the main opinion of the Court of Civil Appeals in L.B.S. v. L.M.S., 826 So.2d 178 (Ala.Civ. App.2002) (plurality opinion): "[U]nder Troxel [v. Granville, 530 U.S. 57 (2000)], `the determination that grandparent visitation will serve the best interest of the child is not alone sufficient to overcome the presumption in favor of a fit parent's fundamental right to rear his or her children.' 826 So.2d at 184." E.R.G., 73 So.3d at 676 (emphasis added).
The attorney general, in his certiorari petition, contends that various writings by the Justices in E.R.G., including my writing, indicated that a presumption in favor of the parent's decision was required for the GVA to be constitutional. Because the 2011 amendments to the GVA provide such a presumption in favor of the parent's decision, the attorney general contends that the GVA as amended in 2011 is now constitutionally sufficient.
It is correct that the 2011 amendments to the GVA create a rebuttable presumption that parents "know what is in the best interests of the child." However, the GVA "does not mandate any other criteria for a court to use when determining whether the statutory presumption has been rebutted." Weldon, 200 So.3d at 667. As the Court of Civil Appeals explains:
Weldon, 200 So.3d at 669 (emphasis added).
Although the 2011 amendments to the GVA create a presumption in favor of the parent's decision regarding grandparent visitation, that presumption, according to the Court of Civil Appeals, is insufficient under Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).