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Grandparents' Rights
Do Grandparents Have Rights to Their Grandchildren?
Since 2018, the law governing grandparents' rights in Georgia has been rapidly changing. Currently this law is still going through a lot of change. Regarding grandparent custody rights, there is a strong presumption in favor of the child's parents. In Georgia, courts will presume that custody with the child's parent or parents is what's best for the child unless it can be shown otherwise. Grandparents bear the burden of proof showing that parental custody would cause physical or significant long-term emotional harm. Regarding visitation, in 2018 The Georgia Supreme Court found a portion of the statute governing grandparent visitation unconstitutional because it allowed courts to award visitation to a grandparent where one of the parents of a minor child dies, is incapacitated or is incarcerated based simply on the best interests of the child, without a clear and convincing showing of actual or imminent harm to the child. Patten v. Ardis, 304 Ga. 140 (2018). The Georgia Supreme Court made it clear that there must be a clear and convincing showing of actual or imminent harm to the child if visitation is not granted, even where one of the parents of a minor child dies, is incapacitated or is incarcerated.
Do Grandparents Have Custody Rights?
Yes. It is possible for grandparents to successfully be awarded custody of their grandchildren. However, it should be noted that courts in Georgia generally presume that it is in the best interest of the children to remain in the custody of their parents. This means that barring any evidence to rebut said presumption, the court will operate as if remaining in the custody of their parents is what's best for the child. That being said, grandparents have rights to their grandchildren and grandparents may successfully be awarded custody if the court finds that an award of custody to the grandparents is for the best interest of the child or children and will best promote their welfare and happiness.
Do Grandparents Have Visitation Rights?
Grandparents in Georgia do not have any visitation
rights with their grandchildren until and unless the court grants them such
rights. Pursuant to O.C.G.A. ยง 19-7-3, a grandparent in Georgia has a right to
file a lawsuit for visitation rights with his or her grandchildren if the
parents of the minor children are separated. Further, a grandparent has a right
to intervene in pending custody cases and seek visitation rights with his or
her grandchildren. The grandparent must show, by clear and convincing evidence,
that the minor children's health or welfare would be harmed unless the
visitation is granted and that such visitation is in the minor children's best
interests.
If the Children are Raised by Grandparents, Can a Parent Obtain Custody?
Yes. In Georgia, the court presumes 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 the grandparents is in the best interest of the child or children. Even if the children have been raised primarily by the grandparents, the court will still presume that custody with the child's parent or parents is what's best for the child unless it can be shown otherwise. To beat this presumption, grandparents must show that parental custody would cause physical or significant long-term emotional harm, not merely social or economic disadvantage.
Can Parents Stop Grandparents Visitation & Custody?
Yes. There is a strong presumption in favor of the child's parents when it comes to custody. Parents are often able to prevent grandparents from obtaining custody because they are able to successfully argue that the grandparents' evidence does not prove that parental custody would cause physical or significant long-term emotional harm to the child, not merely social or economic disadvantage. Regarding visitation, in 2018, the Georgia Supreme Court determined that it was unconstitutional to award visitation to a grandparent over the objection of fit parent or parents based simply on the best interests of the child, without a clear and convincing showing of actual or imminent harm to the child.
Death of the Custodial Parent
Before 2018, if one of the parents of a minor child passed away, the court could award the parent of the deceased 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. However, in 2018 the Georgia Supreme Court found it unconstitutional to award such visitation to a grandparent over the objection of a fit parent based simply on the best interests of the child, without a clear and convincing showing of actual or imminent harm to the child.
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