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Grandparent Rights

Does a Parent Have to Be Found Unfit for a Grandparent to Be Awarded Custody?

Wednesday, November 11th, 2015

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In Georgia, the law presumes that it is in the best interest of a child for custody to be awarded to the child’s parent or parents.  However, this presumption may be overcome by a showing that an award of custody to certain third-party relatives would be in the best interest of the child.  But does this mean that a grandparent seeking custody will have to show that the child’s parents are unfit?  The Georgia Court of Appeals recently reconfirmed previous rulings on this issue in the case of Brawner v. Miller, A15A1063, October 22, 2015, in which it held, “a trial court need not explicitly determine that the parent seeking custody is unfit.  Rather, the court is instead required to determine that the third-party relative has established by clear and convincing evidence that awarding custody to the parent would cause either physical harm or significant, long-term emotional harm to the child.”

In the Brawner case, two children were born to unmarried parents.  The parents lived together for the first few years of the children’s lives, but separated when the oldest child was approximately four years old and the younger child was approximately two.  After the parties separated, the mother moved in with her father, the children’s grandfather, and lived primarily with him for the next seven years.  The father of the children had only sporadic involvement in the children’s lives during this time, despite the fact that he lived only five blocks away from the mother.  The father’s child support payments to the mother were also inconsistent.

When the oldest child was ten years old, the mother was tragically murdered.  Shortly after the mother’s death, the father filed a petition with the court seeking to legitimate the children and have custody of them awarded to him.  The children’s paternal grandfather, with whom they had lived most of their lives, filed a petition to intervene and have custody of the children awarded to him.  After a hearing at which the father’s parents, as well as members of the deceased mother’s family testified, the court granted the father’s petition to legitimate the children, but awarded custody of the children to the grandfather with the father having visitation rights.

The father appealed and argued that the trial court should not have awarded custody of the children to the grandfather because the court did not find the father to be an unfit parent.  The Appellate Court found that it was not necessary for the trial court to find the father to be unfit.  The trial court’s ruling was upheld based on its finding that awarding custody to the father would cause significant, long-term emotional harm to the children.

In upholding the trial court’s findings, the Appellate Court noted “most importantly … [the father] has interacted with the boys only sporadically since he and their mother separated, visiting them occasionally and attending only a few school events and extra-curricular activities despite living a mere five blocks away from [the mother].  As [the grandfather] testified, and the trial court reiterated, the boys are still struggling emotionally from the sudden and tragic loss of their mother.  And although they are beginning to heal from this severe emotional trauma, the healing process will undoubtedly be harmed if they are, at this point in time, uprooted from the only home they have ever known to live with a father who, while perhaps well-meaning, has yet to build a meaningful relationship with them.”

By: Margaret E. Simpson, Associate Attorney, Meriwether & Tharp, LLC

When a Child Has Been Raised Primarily by a Grandparent, Can a Parent Be Awarded Custody?

Wednesday, November 4th, 2015

When a child is born to two people who are not ready to be parents, the grandparents often step in to help raise the child.  But what happens when a parent wants to have more of a role in the life of a child who has been primarily raised by a grandparent?  How would a court decide whether the child should remain with the grandparent or start living with the parent?  The Georgia Court of Appeals recently addressed this issue in the case of Bell v. Taylor, A15A1621, October 28, 2015 (Ga. App. 2015).

In that case, a child was born to unmarried parents in 2008.  In 2011, the parents consented to the child’s maternal grandmother being granted temporary guardianship of the child.  The father, who was 20 years old when the child was born, had little to no involvement in the child’s life for the first few years.  He acknowledged that, during that time he used drugs and alcohol and was “just young and wild and partied a lot.”  Eventually, as the father matured, he straightened out his life and wanted to be more involved in the life of his son.

In 2013, the father filed a petition seeking legitimation and custody of the child.   The maternal grandmother responded to the father’s petition, but the child’s mother did not.  The court granted legitimation and legally changed the child’s last name to the father’s last name.  The court also granted the father visitation with the child on a temporary basis.  The question for the court to decide at the final hearing was whether the child should continue to live with the grandmother or go and live primarily with the father.

At the final hearing the father’s parents testified that he had had problems when he was younger but that during the past two years he had been clean and sober, maintained a job, and had a stable home with a wife and two stepchildren.  A family friend testified that he had seen the father go from not being worth a “plug nickel” to being mature, grown up, in a good marriage, looking after his stepchildren, and able to provide a “solid life” for the child.

The child, who had just turned 6 years old at the time of the final hearing, had lived most of his life with the maternal grandmother.  The grandmother testified that the child had some difficulty when the father first got visitation rights, but that she encouraged the father to be involved in the child’s life and that eventually the visitation started “going pretty good.”  The grandmother presented witnesses who testified that the child was happy, well taken-care-of and doing great living with her and visiting with the father every other weekend.

After all of the evidence was presented, the judge said that he was confident that both parties could take good care of the child, but decided that it would be harmful to the child to remove him from the home of the grandmother where he had lived most of his life and awarded primary custody to the grandmother.

The father appealed the decision and argued that the judge had misapplied the law.  The legal standard for deciding custody actions between a parent and a grandparent is found at O.C.G.A. § 19-7-1 (b.1) which provides, in pertinent part:

There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.

To rebut the presumption set forth in O.C.G.A. § 19-7-1 (b.1), the third party must show that parental custody would cause physical or significant long-term emotional harm, not merely social or economic disadvantage.  Strickland v. Strickland, 330 Ga. App. 879 (2015); Clark v. Wade, 273 Ga. 587, 598 (2001); see also Harris v. Snelgrove, 290 Ga. 181, 182 (2011).  “[A] change in home and school will often be difficult for a child, but some level of stress and discomfort may be warranted when the goal is reunification of the child with the parent.” Clark v. Wade, supra at 598.

In determining whether reuniting a child to the parent would harm the child, the trial court must consider the following factors:

(1) who are the past and present caretakers of the child; (2) with whom has the child formed psychological bonds and how strong are those bonds; (3) have the competing parties evidenced interest in, and contact with, the child over time; and (4) does the child have unique medical or psychological needs that one party is better able to meet.

Clark v. Wade, supra at 598-599.

On appeal, the father argued that because the trial court did not specifically find that any physical or significant, long-term psychological harm would have resulted if the child were to live primarily with him, he should have been granted primary custody.  The appellate court agreed and held that “the type of harm noted by the trial court falls within that level of stress and discomfort that is an acceptable price for reuniting a child with a parent, and is insufficient to infringe the fiercely guarded right of a parent to have legal and physical custody of his or her child.”  The appellate court sent the case back to the trial court with the instruction to award custody to the father.

By: Margaret E. Simpson, Associate Attorney, Meriwether & Tharp, LLC

Grandparents May Seek Grandparents’ Visitation Upon Death of Parent

Monday, October 26th, 2015

Prior to the enactment of Georgia’s Grandparent Visitation Act, grandparents in Georgia did not have the legal right of visitation with their grandchildren. Upon passage of this very important family law, grandparents were afforded the right to exercise legally protected visitation rights with grandchildren. However, until an amendment of the Act was passed in 2012, grandparents could only assert visitation rights under certain situations. More specifically, grandparents could only file an original action seeking visitation when the parents were separated and the child was not living with both parents. Kunz v. Bailey, 290 Ga. 361 (2012)(holding “by virtue of the limiting language in the last sentence of O.C.G.A. §19-7-3 (b), grandparents may only file an original action for visitation when the parents are separated and the child is not living with both parents).

In response to the Georgia Supreme Court’s ruling in Kunz, the legislature amended the Grandparents Visitation Act in 2012, by adding subsection (d), which provides:

Notwithstanding the provisions of subsections (b) and (c) of this Code section, if one of the parents of a minor child dies, is incapacitated, or is incarcerated, the court may award the parent of the deceased, incapacitated, or incarcerated parent of such minor child reasonable visitation to such child during his or her minority if the court in its discretion finds that such visitation would be in the best interests of the child. The custodial parent’s judgment as to the best interests of the child regarding visitation shall be given deference by the court but shall not be conclusive

O.C.G.A. § 19-7-3 (d). In the recent Georgia Court of Appeals case Fielder v. Johnson, A15A0032 (Ga. Ct. App. July 16, 2015), the Court analyzed this new sub section, and confirmed that although the facts of Fielder and Kunz were almost identical, due to the new change in the law, the grandparents in Fielder did indeed have standing to file an original action seeking grandparents visitation, because their daughter (the child’s biological mother) was deceased.


Grandchildren of Divorce

Sunday, October 25th, 2015

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The impact of divorce on the children involved is an issue that is contemplated by nearly every divorcing parent, and is also a topic of various books, blogs and articles concerning divorce. This focus is of course important. However, there is another important relationship that may be negatively impacted by divorce: the relationship between grandparents and their grandchildren.

Unfortunately, a divorce may not only dissolve the relationship between the two former spouses, but it may also dissolve the relationship between the divorced spouses and their former in-laws. In fact, a divorce may leave former in-laws with negative feelings toward their child’s ex-spouse, and often those negative emotions are manifested (knowingly or unknowingly) when grandparents interact with their grandchildren. Just as it is important for ex-spouses to maintain a cordial relationship to effectively co-parents their children post-divorce, it is also important for grandparents to respect their former daughter or son in law for the benefit of their grandchildren. With this being said, if you have grandchildren of divorce, please keep the following in mind when spending time with your grandchildren:

  • Your grandchildren love their parents, both of them. Thus, if you are speaking ill of your ex daughter or son-in-law in front of your grandchildren, you may be causing your grandchildren to endure emotional distress. Not only may disparaging your former daughter or son in law cause your grandchildren potential emotional harm, but failing to even acknowledge their existence or refusing to talk about them at all with your grandchildren may also be emotionally harmful. So, be mindful of how you react and what your say when discussing your former son or daughter in law.
  • Remember, the relationship you foster with your grandchildren now will ultimately impact your future relationship with them. If your words or actions regarding their parents are upsetting to your grandchildren, they may eventually come to resent that. As a result, your grandchildren may avoid spending time with you as they grow up. No amount of disdain you have for your former son or daughter in law should cause you to risk a future relationship with your grandchildren.
  • Finally, you don’t have to like your former daughter or son in law. But, you should be civil with them for the sake of your grandchildren. Going forward, there will be several occasions, like graduations and weddings, where interacting with them will be necessary. Maintaining a civil relationship will not only make these occasions easier for you, but also more enjoyable for your grandchildren. Be sure to keep this in mind.

Although it is important for you to enjoy your relationship with your grandchildren, you should also ensure they enjoy and value their relationship with you. This can be achieved, in part, by respecting both of their parents. If however, you find yourself in a situation where one or both parents begin to block or interfere with your relationship with your grandchildren, there are steps you can take assert your grandparent visitation rights.

As a Grandparent, Do I have a Legal Right to Visit my Grandchildren?

Monday, August 17th, 2015

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The short answer to this question is yes. But, this right is not automatically recognized legally. Put another way, if you are a grandparent, and you want to legally establish your legal right to visit your grandchildren, you can, but there are certain steps that you must take first. Georgia law recognizes that it is extremely important for children to not only have a relationship with both parents, but to maintain a healthy relationship with their grandparents as well. As a result, Georgia law allows grandparents to seek and establish a legally enforceable visitation arrangement with their grandchild or grandchildren in certain circumstances. According to O.C.G.A. § 19-7-3, a grandparent may either file an original action for visitation or intervene in an ongoing action that determines the custody of their grandchild (such as an adoption, divorce, or modification action) and ask the Court to grant him or her the right to reasonable visitation with their grandchild.

It is important to note that as a grandparent, you may only seek visitation rights in cases where the parents are separated, divorcing or divorced. For further information on how to seek grandchild visitation and how to protect your relationship with your grandchild or grandchildren, see our other articles on Grandparents Rights in Georgia. If you have any questions, or if you are ready to exercise your right to visitation, contact one of our friendly and experienced family law attorneys today.

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.