The Court of Appeals of Georgia recently heard its second grandparent visitation appeal in as many months. Vincent v. Vincent, A15A1244 (2015). In the Vincent case, the mother and father had divorced after the father was incarcerated, and the paternal grandparents sought visitation with their minor grandchildren over the mother’s objection. After a hearing, the trial court denied the grandparents’ petition, relying on subsection (c) of the grandparent visitation statute, which provides, in part, that “the court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation.” O.C.G.A. § 19-7-3(c)(1). The grandparents appealed.
After review, the Court of Appeals of Georgia vacated the trial court’s order and remanded the case. Specifically, the Court held that the trial court applied the wrong standard in determining whether grandparent visitation should be awarded, and should have applied subsection (d) of the grandparent visitation statute, which was added in 2012 to read: “[n]otwithstanding the provisions of subsections (b) and (c) of this Code section, if one of the parents of a minor child dies, us uncapacitated, 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.” O.C.G.A. § 19-7-3(d). Since the father was incarcerated, the trial court should have applied this more favorable standard, rather than the more stringent subsection which requires the grandparents to prove that the health or welfare of the child would be harmed if visitation were not granted.
It is interesting that both grandparent visitation appeals were a result of trial court’s ignoring the fact that the grandparent visitation statute was amended to address the exact issue in these appeals. In both cases, it is clear that the parties/attorneys and the trial court judges were not aware of the 2012 change in the law. Hopefully, anyone thinking about filing a future grandparent visitation case will review the most recent law before taking his or her case to court.