The Meriwether & Tharp Divorce Attorney Blog

Return to the Blog Home Page

Grandparent Rights

Can I Win Custody of My Grandchild?

Wednesday, November 20th, 2013

The short answer to the above posed question is: Yes, under the correct circumstances. In Georgia, there is a legal presumption that it is in the best interests of the children to be cared for by their parents and to remain in their custody.  However, grandparents may successfully intervene in divorce cases and other domestic relations cases where child custody is an issue to obtain legal custody of their grandchild. O.C.G.A. §§ 19-7-1 (b.1) and 19-7-3(b). See also Walls v. Walls, 278 Ga. 206 (2004). Specifically, according to O.C.G.A. § 19-7-1(b.1), a grandparent may very well obtain custody of his or her grandchild if the court presiding over the custody related matter determines “that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness.”

Grandparents’ rights is an expanding area of Georgia law, and grandparents are beginning to enjoy more and more victories as it relates to winning legal custody and court ordered visitation of their grandchildren. If you wish to exercise your custodial rights as a grandparent, seek the professional advice of an experienced  attorney to begin the process of seeking custody of your grandchild today.

 

Grandparents’ rights in Georgia

Monday, July 30th, 2012

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 reasonablevisitation 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 thechild 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 inthe 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 thechild 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 bestinterests 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-yearperiod. 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

Limited Exception to Grandparents’ Rights Statute in Georgia

Wednesday, August 1st, 2007

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 theright 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 thechildren. 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 tointervene 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 biologicalmother 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 ifthe 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 notseparated, 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 isintact. Id.

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

By Elizabeth Doak, Associate, Meriwether & Tharp, LLC

Grandparent visitation rights in Georgia

Thursday, February 1st, 2007

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.