Grandparent visitation is not an issue that comes up frequently in family law courts but, when it does, it is usually an emotional case as there is a parent who is basically denying grandparents the right to see their grandchildren. The Court of Appeals of Georgia recently heard a case wherein the father was denying visitation to the maternal grandparents. Fielder v. Johnson, A15A0032, Court of Appeals of Georgia (2015). In that case, the father and biological mother divorced and the father was awarded sole physical custody of the child. Subsequently, the father remarried and the biological mother passed away. The father's wife thereafter adopted the child. Id. The parents of the biological mother ("grandparents") filed a petition for grandparent visitation and the father filed a motion to dismiss, which was granted by the trial court. The grandparents appealed.
In granting the motion to dismiss, the trial court relied on the father's argument that the Grandparent Visitation Statute (O.C.G.A . §19-7-3) combined with the seminal case Kunz v. Bailey made it clear that the case must be dismissed because it was filed as an original action. Taken together, the Grandparent Visitation Statute and the Kunz case hold that grandparents can only file an original action for visitation when the parents are separated and the child does not live with both parents. The trial court, thus, held that "[The Grandparents] cannot simply ignore the fact that the Child was adopted by Stepmother…The Child is living with two parents, her biological father and her adoptive mother; therefore, the [Grandparents] do not have standing to file a petition seeking court-ordered visitation and access." If the law on the issue had stopped at that point, they may have been correct.
Georgia Case Law Update - Mermann v. Tillitski
However, according to the Court of Appeals, the trial court ignored the fact that the Grandparent Visitation Statute was amended shortly after the Kunz case to deal with this issue. Specifically, the statute now includes subsection (d) which states, in part, "…if one of the parents of a minor child dies…the court may 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 interest of the child." O.C.G.A. §19-7-3(d). Reading the plain language of this amended statute, the grandparents in this case clearly have standing to file an original action for grandparent visitation. As such, the trial court's decision was reversed. Whether the grandparents win in their quest for visitation will be up to the trial court, who will use the best interests of the child standard, while giving deference to the father's judgment on that issue.