In re: Melissa Marler v. Julie L. Lambrianakos (2022)

WRIT DENIED. NO OPINION.

Parents have a fundamental right to direct their children's upbringing. See Ex parte J.E., 1 So. 3d 1002, 1006 (Ala. 2008); Ex parte E.R.G., 73 So. 3d 634, 637, 642-43, 648-49 (Ala. 2011) (plurality opinion); id. at 650-56 (Parker, J., concurring specially); id. at 672 (Bolin, J., concurring in result); Ex parte G.C., 924 So. 2d 651, 679, 687 (Ala. 2005) (Parker, J., dissenting); Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion); id. at 80, 120 S.Ct. 2054 (Thomas, J., concurring in judgment). And this right of a parent does not cease to exist, even temporarily, simply because another person is allowed visitation with the child. In this case, I concur in denying the petition because Melissa Marler does not establish a basis for certiorari review. But the Court of Civil Appeals’ opinion contains language about the effect of another person's visitation privileges on Marler's fundamental parental right. I write to caution lower courts and lawyers against relying on that language beyond the context of the issues involved in this case.

Marler is the mother of a child, and the child's father has died. The child's paternal grandmother, Julie L. Lambrianakos, obtained a judgment in New York awarding her visitation with the child. Lambrianakos registered that judgment in the Madison Circuit Court. The Court of Civil Appeals affirmed that registration. The circuit court later granted Lambrianakos additional days of visitation to make up for visitation that she had missed as a result of three things: Marler's failure to abide by the New York judgment, a stay of that judgment during part of the litigation, and the COVID-19 pandemic.

Marler appealed, arguing that the award of makeup visitation modified the New York judgment and that the award violated her fundamental right to custody and control of the child. The Court of Civil Appeals held that the award was an enforcement, not a modification, of the New York judgment. And the court held that the award did not violate Marler's fundamental right because that right had already been curtailed by the New York judgment. Marler v. Lambrianakos, [Ms. 2200269, Feb. 25, 2022] ––– So. 3d ––––, ––––, 2022 WL 570456 (Ala. Civ. App. 2022). In explaining the second holding, the court stated:

“[Marler] argues, in essence, that allowing [Lambrianakos] to make up visitation to which [Lambrianakos] was entitled under the New York judgment is a violation of [Marler's] right to the care, custody, and control of the child. We agree [with Marler] that [she] has that fundamental right, but, unlike [Marler], we acknowledge that that fundamental right was somewhat curtailed by the award of grandparent visitation to [Lambrianakos] in the New York judgment. Under the terms of the New York judgment, [Marler] is not entitled to have custody of the child on the days of visitation that were designated as awarded to [Lambrianakos]. Thus, [Marler] did not have a constitutionally protected right to the sole care, custody, and control of the child on days designated under the New York judgment as grandparent-visitation days awarded to [Lambrianakos]. Under the facts of this case, we cannot agree with [Marler] that the trial court's enforcement of the visitation provisions of the New York judgment by allowing [Lambrianakos] days of visitation to make up for those denied to her constitutes any infraction of [Marler's] constitutional rights.”

Id. at –––– (emphasis added).

The emphasized language is the part I am concerned about. In the immediate context of that part of the opinion and the broader context of the issues in the case, the Court of Civil Appeals appears to have meant only that (1) the New York visitation judgment impaired some aspects of (“curtailed”) Marler's fundamental right -- particularly her entitlement to sole custody -- and (2) in the makeup-visitation proceeding, it was too late to challenge that impairment because the makeup visitation was merely an enforcement (not a modification) of the New York judgment. The emphasized language ought not be read as saying that Marler's fundamental right ceased to exist on Lambrianakos's visitation days. Of course, that is not the way parental rights work. Absent a full termination of parental rights, a parent ordinarily retains many aspects of the fundamental right to direct her child's upbringing, even during another's visitation. This is why courts can prohibit those visiting persons from disparaging the parent, alienating the child from the parent, and otherwise interfering with the parent-child relationship, cf. Hagler v. Hagler, 460 So. 2d 187, 189 (Ala. Civ. App. 1984); C.J.L. v. M.W.B., 879 So. 2d 1169 (Ala. Civ. App. 2003); Bledsoe v. Cleghorn, 993 So. 2d 456, 461 (Ala. Civ. App. 2007), reversed on other grounds, Ex parte Cleghorn, 993 So. 2d 462 (Ala. 2008). So the Court of Civil Appeals’ language must not be applied more broadly than its contextual meaning, in a manner that conflicts with the persistence of a parent's fundamental right.

STEWART, Justice.

Bolin, Wise, and Sellers, JJ., concur. Parker, C.J., concurs specially, with opinion.