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.