February 3, 2017
Grandparent Visitation Rights in Georgia
In order to understand the current state of the law with regard to “grandparent visitation” in Georgia (O.C.G.A. §19-7-3) one must first understand how custody and visitation is determined by the courts when the custodial dispute is between parents. Further, one must recognize that Georgia law provides a means by which certain third-party relatives (including grandparents) can actually get permanent custody of a child over the objection of one or both parents.
Custody Disputes — Parent vs. Parent
In child custody and visitation disputes between parents the standard applied by the court is very straightforward. The court is required to structure a custody and parenting time schedule based on what the court determines will promote the child’s best interest. Even in cases where the parents have an agreement concerning custody and parenting time the court is required to review the agreement and make a determination that the agreement serves the best interest of the child. In disputes between parents, the court will apply an evidentiary standard known as a preponderance of the evidence, which means that the court has slightly more evidence to lead it to chose one conclusion over a different conclusion. O.C.G.A. §19-9-3(a)(2).
Custody Disputes — Parent vs. Relatives
The law allows certain third parties to obtain permanent custody of a child over the objection of one or both parents. O.C.G.A. §19-7-1(b.1). Third party relatives of the child limited to grandparents, great-grandparents, aunts, uncles, great aunts, great uncles and siblings may obtain permanent custody. Under the law, however, the court is required to presume that awarding child custody to a parent over a non-parent will serve the child’s best interests.
To overcome the presumption that a child should be placed in the custody of a parent the third-party relative must prove to the court by clear and convincing evidence that allowing the parent to retain custody of the child would be harmful to the child. Once “harm” is proven the third party relative must then show that awarding him/her custody would serve the best interests of the child.
The “clear and convincing evidence” standard is a much higher evidentiary standard to meet than the “preponderance of the evidence” standard that applies to custody disputes between parents.
Visitation – Grandparent vs. Parent
Grandparents currently have the right to petition for court-ordered visitation rights under O.C.G.A. §19-7-3. The 1988 version of this statute was struck down by the Georgia Supreme Court in 1995 based upon a finding that it was unconstitutional under the Georgia and United State Constitution, but a revised version of the statute was enacted by the Georgia legislature in 1996 to remedy the constitutional issues within the previous version of the statute. Since 1996 the Georgia legislature has tinkered with the statute with the most recent revision occurring on July 1, 2016.
Expanded Beyond Grandparents
With the 2016 amendment the statute now provides standing for relatives other than grandparents to seek court-ordered visitation. The law now provides great-grandparents, aunts and uncles with the right to petition for and receive visitation rights with a child over the objection of one or both parents. Therefore, it is perhaps inaccurate to refer to O.C.G.A. §19-7-3 as the “grandparent visitation” statute.
Cases Where a Child Has Been Adopted
O.C.G.A. §19-7-3 provides biological grandparents, great-grandparents, aunts and uncles the right to seek and receive visitation rights with a child when the child has been adopted by a stepparent. In other words, even though a biological parent has had his or her parental rights terminated by an adoption and that biological parent is thereafter prohibited by law from interfering with the parental rights of the adoptive parent the grandparents, great-grandparents, aunts and uncles from the terminated parent’s side of the family still have standing to seek visitation with the child.
Cases Where the Parents are “Together”
O.C.G.A. §19-7-3 specifically states that no petition for visitation may be filed by a grandparent, aunt or uncle if the parents of the child “are not separated and the child is living with both parents”. This language would seem to suggest that if the parents are married but separated that an action for visitation could be brought by the third-party relative. If the parents of the child are not married but live together the language of the statute suggests that third-party relatives could not seek visitation rights.
The Legal Standard Applied by the Court
In all cases in which third-party visitation is authorized under O.C.G.A. §19-7-3 the court is required to consider whether reasonable visitation rights should be awarded only after the court finds by clear and convincing evidence that the health or welfare of the child would be harmed unless such visitation is granted. The Court must then demine if the best interests of the child would be served by such visitation being awarded.
In considering whether the health or welfare of the child would be harmed unless third-party visitation is allowed the Court must consider and may find that harm to the child is reasonably likely to exist when: (A) The minor child has previously resided with the family member for six months or more; (B) The family member has previously provided financial support for the basic needs of the child for at least one year; (C) There was previously an established pattern of regular visitation or child care by the family member with the child; or (D) Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.
Cases Where Parent of a Child is Deceased
O.C.G.A. §19-7-3(d) creates a remarkable exception for certain grandparents. If a grandparent has a son or daughter that is deceased, incapacitated or incarcerated and the grandparent petitions to obtain visitation with the child of the deceased, incapacitated or incarcerated son or daughter then the grandparent only has to show that allowing grandparent visitation is in the child’s best interest. The grandparent does not have to show that the child would be harmed if visitation is not allowed. This provision only applies to qualified grandparents and does not apply to great-grandparents, aunts or uncles of the child.
I absolutely support grandparents being involved in a child’s life. I also support the right of parents to provide for the care of their children as they deem appropriate. The Georgia Supreme Court has stated: “The right to the custody and control of one’s child is a fiercely guarded right that should be infringed upon only under the most compelling circumstances.”
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