Atlanta Divorce Attorney Blog

Grandparent visitation is an issue that is addressed often by the appellate courts in Georgia. Recently, the Court of Appeals heard a case where the trial court failed to address a grandparent’s request for visitation despite the fact that the request was proper under Georgia law. Sheppard v. McCraney et al., A12A0933 (2012). In Sheppard v. McCraney, the paternal grandparents had temporary guardianship of the minor child due to the parents’ drug abuse problems. After being denied visitation with the child, the maternal grandfather filed a petition seeking custody of the child and, in the alternative, grandparent visitation with the child. At the hearing, the maternal grandfather decided to abandon his request for custody and pursue his request for grandparent visitation. Id. The mother and paternal grandparents objected to the request for grandparent visitation. After the hearing, the trial court’s order dismissed the custody request, but failed to address the visitation request. Id. The maternal grandfather appealed, claiming that the trial court erred in failing to make specific findings of fact in deciding the visitation issue.

In Georgia, a grandparent can file an original action for visitation when the parents are separated and the child is not living with both of the parents. OCGA §19-7-3(b). Further, “[u]pon the [grandparent’s] filing of an original action…the court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted, and if the best interests of the child would be served by such visitation. The court shall make specific written findings of fact in support of its rulings.” OCGA §19-7-3(c).

In the case, the maternal grandfather met all the requirements for filing an original action for grandparent visitation. Thus, according to the Georgia Court of Appeals, the trial court “was required to apply OCGA §19-7-3(c) and determine whether [the maternal grandfather] had presented clear and convincing evidence that the health or welfare of the child would be harmed unless visitation was granted, and whether the child’s best interests would be served by allowing such visitation.” Sheppard v. McCraney et al., A12A0933 (2012). The trial court failed to do so and, therefore, the Court remanded the case back to the trial court for an entry of an order on the visitation issue, with specific findings of fact as required by the statute.

The Supreme Court of Georgia recently affirmed and clarified a limited exception to the law that allows grandparents to petition the Court for visitation rights with their grandchildren. Hudgins v. Harding, 313 Ga. App. 613 (2012). Generally, when a child is adopted, the former grandparents’ rights are terminated with the adoption. (See O.C.G.A. § 19-7-3 (b)). However, when a blood relative or a stepparent adopts a child, grandparents have the right to intervene and seek visitation rights in a new civil action. This new action is permitted only when the parents of the child are separated and the child is not living with both parents.

In the case of Hudgins v. Harding, 313 Ga. App. 613 (2012), the biological parents divorced and the minor children all lived with the mother. She remarried and her new husband adopted the children. The biological father’s parents, the child’s biological paternal grandparents, attempted to intervene and filed an action to obtain grandparents’ visitation rights. Id. at 614. However, due to the fact that there was no evidence that parents (the biological mother and the adoptive father) were not living together, the Court found that the grandparents’ attempt to intervene and get visitation rights with the children was not permitted under the law. Id. at 616. The Court remanded the case back to the lower Court to determine whether the biological mother and adoptive father were separated and whether the minor child was living with both parents. Id.

This case is distinguished from a recent ruling in Kunz et al. v. Bailey et al., 290 Ga. 361 (2012), which affirmed that grandparents could file an original action for visitation rights if the parents are separated and the child is not living with both parents. However, in Kunz v. Bailey, there was evidence that the child was living with both parents and that the parents were not separated, thus the Court denied the grandparents’ request. The case acknowledged that State and the Court have no right to intervene into a parent’s right to raise children when the family is intact. Id.

If you have questions about grandparent’s rights, please contact our Atlanta Family Law Attorneys.

By Elizabeth Doak, Associate, Meriwether & Tharp, LLC

Georgia family law attorneys are often asked about the rights grandparents have to see their grandchildren. Pursuant to O.C.G.A. § 19-7-3, a biological grandparent can either file an original action for visitation or join an ongoing action that determines the custody or rights of his grandchild (either an adoption, a divorce, modification or other proceeding) and ask the Court to grant him the right to reasonable visitation with his grandchild. However, if there is no ongoing litigation, in order to file an original action, the child’s parents (biological or adoptive) must currently be separated and the child must not be living with both of his parents. Additionally, an original action requesting visitation rights cannot be filed more than once during any two-year period and cannot be filed in the same year as a different proceeding regarding the custody of the child.

When determining whether to grant a grandparent visitation, the Court assesses the best interest of the child and, if it finds that the “health or welfare” of the child would be damaged if the child did not have visitation with the grandparent, then the Court will grant visitation rights. Id. The Court must make specific findings of fact regarding its ruling regarding the best interests of the child and the need for visitation.

After the Court grants visitation, a parent, grandparent, or guardian may request that the rights are altered or removed for good cause, but may not do so more than one time in any two-year period. Id.

In any grandparent visitation proceedings, the Court may also appoint a guardian ad litem and make the grandparent pay for these costs, or may assign the case to mediation. Id.

If you are in the middle of a court case involving grandparent visitation, please contact our Atlanta Family Law Attorneys.

By Elizabeth Doak, Associate, Meriwether & Tharp, LLC

In Georgia, grandparents have very limited rights. I was recently asked about visitation for the paternal grandparents in a situation where the parents of the child (who never married) are refusing access to the child.

In this situation, the grandparent’s rights depend partly on whether the father has legitimated the minor child. Without a Court order granting legitimation, the father has no rights, which arguably means the paternal grandparents have no rights. Unfortunately, with this set of facts, there does not seem to be a valid claim for visitation.

The Supreme Court of Georgia recently heard an interesting case regarding visitation rights for grandparents whose son’s parental rights had been terminated. Kunz v. Bailey, S11G0867 (2012). In that case, the child’s stepfather adopted the child after the biological father’s rights were terminated. Id. After being denied access to the child, the paternal grandparents (parents of the biological father whose rights were terminated), petitioned for visitation rights with the child. Id. Under Georgia law, a petition for grandparent visitation is not authorized where “the parents of the minor child are not separated and the child is living with both of the parents.” OCGA §19-7-3(b). Therefore, the child’s mother and adoptive father (“Parents”) moved to dismiss the action and, after the motion was denied, filed a direct appeal to the Court of Appeals of Georgia. Id. at 2. The Court of Appeals reversed the trial court’s denial of the Parents’ motion to dismiss, determining that the term “parent” in the grandparent visitation statute “was not limited to natural parents, but included adoptive parents as well.” Id.

The grandparents then filed a petition for certiorari with the Supreme Court of Georgia to determine whether the language of the grandparent visitation statute cited above includes adoptive parents. Id. at 3. The Supreme Court of Georgia held that the statute did include adoptive parents. Any other interpretation would “allow grandparents, by court action, to intrude upon the ‘constitutionally protected interest of parents to raise their children.'” Id. at 4, quoting Brooks v. Parkerson, 265 Ga. 189, 191 (1995). In addition, there was no limiting language in the statute that distinguished between any class of parents. Kunz, at 4.

The Court also agreed that the trial court’s denial of the original motion to dismiss was error. Since the adoptive father was the father of the child at the time the grandparent visitation was filed and the child was living with both parents, there was no basis for an original action for visitation by the grandparents. Id. at 5. Thus, dismissal of the grandparents’ visitation petition “was the proper outcome.” Id.