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Death of Parent & Grandparent Rights

If a Parent Dies, do Grandparents have Rights? 

Before 2018, Georgia law provided that in the unfortunate event that one of the minor child's parents dies, grandparents could ask the court to grant visitation rights to a grandparent as long as the best interests of the child or children involved would benefit from grandparent visitation.

In 2018, The Supreme Court of Georgia held the aforementioned Georgia law to be unconstitutional. The Court noted that granting grandparents visitation over the objection of a fit parent without a clear and convincing showing of harm to the child in circumstances involving the death, incapacitation, or incarceration of the other parent is unconstitutional. This is because the aforementioned law violated the fundamental right of parents to the care, custody, and control of their children under state constitution. The area of grandparents rights is an ever changing area of the law, please do not hesitate to seek out the advice of an experience divorce lawyer if you need help with this issue.

Georgia Law 

Before 2018, Georgia allowed grandparents to seek out visitation in the event of a parent death as long as such vistation was in the best interests of the child or children involved. In 2018, The Georgia Supreme Court held the aforementioned law unconstitutional. The relevant quotes are included below for clarity.

[I]f 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)

This provision . . . suffers from the same constitutional infirmity—it permits a court to set aside the decisions of a fit parent about what is best for his or her child, without clear and convincing proof that those decisions have harmed or threaten to harm the child, and based simply on the conclusion of a judge that he knows better than the parent what is best for the child. Adhering to our decision in Brooks, we hold today that OCGA § 19-7-3 (d) violates the right of parents to the care, custody, and control of their children, as that fundamental right is guaranteed by the Constitution of 1983.

Patten v. Ardis (Supreme Court of Georgia) 2018

Additional Resources 

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