R.S.C. v. J.B.C. , 2001 Ala. Civ. App. LEXIS 508 ( 2001 )

YATES, Presiding Judge,

concurring in the result.

I agree with Judge Murdock that a parent’s right to make decisions regarding his or her child’s visitation with a nonparent is a fundamental liberty interest entitled to strict scrutiny under the Fourteenth Amendment. See J.S. v. D.W., [Ms. 2990431, May 4, 2001] — So.2d - (Ala.Civ.App.2001). I agree that the statutory presumption in favor of grandparent visitation established by § 30-3-4.1, Ala.Code 1975, is unconstitutional as applied, based on Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). I also agree that even if the grandparents could prove that visitation was in “the best interests of the child,” that fact would not overcome the parents’ fundamental liberty interest in making decisions regarding the care, custody, and control of their child. “In contrast to parental rights, a grandparent’s right to visitation is a recent statutory creation and is not a fundamental right on an equal footing with the right of a parent.” J.S. v. D.W., — So.2d at-. I cannot, however, agree with all of the statements in the opinion.