GrandparentVisitation with David Canale 

Speaker 1 (00:07):

Welcome everyone to Divorce Team Radio, sponsored by the divorce and family law firm of Meriwether and Tharp. I'm your host, Todd Orton, and here you're going to learn about divorce family law from time to time, even tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us, you can always check us out online@atlantadivorceteam.com. Alright, let's get started. So over the years we've done shows on a number of topics and every time I think that we've hit every topic, I realize, hey, there's something else that we haven't talked about. And sometimes it's enough for a part of a show and sometimes it's something where we have to dedicate an entire show to it. And that's what we're doing today. Grandparent visitation, we've talked about it a little bit, but it's time because it's an issue that comes up all the time.

(01:02):

We have people call and there's so many different types of scenarios where one of the parents maybe has passed away where both parents are basically putting a stop to a grandparent or grandparents from visiting with a child. And in Georgia there's law on the books that allows them under certain circumstances to petition the court for some dedicated visitation with the child. So I started thinking about it and I realized very quickly that while I do know about this of course, and I've handled these matters, I have someone in the firm who really knows about this, has a lot of experience. And so David Canal is with us. He's one of the partners at Merriweather and tha David, welcome to the show.

Speaker 2 (01:55):

Thank you Todd. It's my pleasure to be here.

Speaker 1 (01:57):

Alright, so before we jump into grandparent visitation, as with all of our shows, we're going to do everything we can to throw as much data at the listeners. But before we do that, let's talk first about you. Alright. Tell the listeners a little bit more about you and your experience.

Speaker 2 (02:16):

Sure, I'd be happy to do that. So as you mentioned, I'm one of the partners here at Merriweather and Tharpe. I've been practicing family law in the state of Georgia since about 1996. I've been with the firm since 2016, so I think I'm starting my eighth year. So that's a little bit of the background. I've been handling cases involving grandparents probably since the early two thousands or the late 1990s maybe. I can't remember exactly. I used to do a lot of work in a local juvenile court and these issues came up in those kinds of cases where you had parents who were losing custody of their children and grandparents were coming in trying to be a stopgap, trying to get custody of their children. So it's kind of over the years and the Georgia statute has also evolved as well. Case law has evolved, but these cases are more and more common and I've been handling them for a number of years.

Speaker 1 (03:13):

Alright, let's start then with, and maybe it's very, very basic, but let's go into a quick discussion just what exactly is grandparent visitation?

Speaker 2 (03:25):

Okay, sure. Under Georgia law, there's a statute that allows grandparents, and actually it's been expanded to other family members as well, but it's most often the case of grandparents allows grandparents to come in and petition a court for visitation with their grandchildren. We've had in the past 30 to 40 years changing dynamics and families and things like that where you have grandparents who are, first of all, they're living longer, they are generally healthier maybe than they were years ago. And those grandparents are becoming more and more involved in their grandchildren's lives for any number of reasons. Most often it's because of parental inability or parents who need help, the grandparent who provides the childcare for the grandchild or the grandparent who was there because the parent has mental health issues or has substance abuse issues. And so the grandparents are stepping kind of into the gap to provide care for their grandchildren.

(04:26):

And then what happens is the circumstances change for whatever reason, maybe one of the parents passes away and the other parent wants to cut off contact. So what you have is you have grandparents who are coming in and asking courts for the right to maintain their relationship with their grandchildren based upon another change in the family dynamic. A parent who maybe now has their act together or they're out of jail and they're coming back in saying, Hey, this is my child. The child's going to live with me now, and the grandparent is over there on the side wondering what happens with me. I really feel like this is my child. So that happens very frequently. And so that's kind of what the reason why there is a grandparent visitation statute. And it's not only Georgia that has these, they have them in other states, Florida, New York, California, wherever you live, you can probably find one. And the reason for the statutes is to allow grandparents generally who have and establish relationship with a grandchild or grandchildren to try to maintain that even over the opposition of the parent. And so that's basically how these cases arise

Speaker 1 (05:38):

And that's really important. It's the established relationship because we've seen, I can speak for myself, I've had people call and they're like, I'm the grandparent and I've never met this child. And then we've had the situations where the grandparent did step into the gap, did step in, and maybe they even had guardianships that were put in place at one point, but had a very, very close relationship with the child or children in question. And that becomes a really important point that the court's going to be looking at.

Speaker 2 (06:18):

And that's a very good point to raise, Todd, is that you have grandparents who may have never had a relationship with a grandchild who ask about visitation. And you have grandparents who have a very well-established relationship with the grandchild. And the statutes are really meant to preserve an established relationship, but not necessarily to offer an opportunity to develop one. And that's unfortunate for some grandparents because like you said, they may have a grandchild that they've never met and they want to meet that grandchild, but for whatever reason, the parent doesn't want them to be involved. And it's unfortunate that there is no remedy sometimes in those cases, but that's just kind of what the statutes are. And that's based upon the parent's, right? Parents in the United States have a constitutional right to direct the upbringing of their children. There's a long established line of cases from the US Supreme Court starting years ago in 1923 and in 1925 where the US Supreme Court has held that parents basically have a constitutional right under the 14th amendment to direct the upbringing of their children.

(07:34):

And that includes sometimes cutting out a grandparent if that is the parent's decision. And so those constitutional kinds of restrictions come into play in these statutes because the statutes may exceed what the constitution will allow. And so the statute sometimes has to be rewritten or it's upheld as unconstitutional. But what you have is you have the interplay of a parent's constitutional right, balanced against a statutory right of a grandparent to maintain a relationship. And a lot of times the parent's constitutional right is going to be superior. So those kinds of issues are all wrapped up in this and that's why the statutes are not absolute, but keep in mind for grandparents, the parental right is stronger and the parental right to control the upbringing of the child or children is pretty much absolute unless there are certain things that are happening. So it's a balancing act for the courts and the legislatures.

Speaker 1 (08:42):

And is that the point where best interest of the child, that standard comes into play? In other words, a parent has that constitutional, which we've all been taught, even if you're not a lawyer, that's a pretty strong right, guaranteed by the Constitution. And yet there are always, or many times there are going to be exceptions to rules and therefore a court can say, okay, I get it, parent, you have a constitutional right, but these grandparents have had contact. And where does best interest of the child come into play in that equation?

Speaker 2 (09:26):

Yeah. Well, basically the best interest of the child is a part of the inquiry, but when you're talking about the state interfering in the parents' raising of the child, you have to be able to prove harm. And that's basically why, for an example, the state is able to take children away from parents who abuse or neglect them. The reason why is that the state is acting to protect the children from harm. And so that harm kind of theory is also tied into the grandparent visitation statute. And generally what you have to show, you can't show just the best interest. Best interest is what applies between parents. But when it comes to a grandparent or an outsider, you also have to show harm. And so just like it's used in a juvenile court to take an abused or neglected child away harm is also part of this inquiry. And that is really the issue. You have to show both of those also at a higher level of a burden of proof.

Speaker 1 (10:30):

And where that I have seen gets tricky is harm. That's an interesting term. It is what constitutes actual harm. And I know there's case law on that as well. But nonetheless, we're going to go into that. We're going to go into some other things. I want to better understand the extended parental authority and we'll go into some various state criteria, but we're going to do that when we come back and continue this conversation about grandparent visitation. We'll be right back.

Speaker 3 (11:02):

I just wanted to let you know that if you ever want to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB, so you can always check us out there as

Speaker 1 (11:12):

Well. Better than Counting Sheep, I guess, right? That's right. You can turn on the show and we'll help you fall asleep.

Speaker 3 (11:20):

There you go. I'll talk very

Speaker 1 (11:21):

Softly. Welcome back everyone to Divorce Team Radio, a show sponsored by the Divorce and Family Law firm of Meriwether and Tharp. I'm Todd Worton, your host, and if you want to read more about us, you can always check us out online@atlantadivorceteam.com, or if you want to read transcripts of this or other shows or go back and listen to shows, again, you can find them@divorceteamradio.com. So today I have David Canal with me and we are talking about grandparent visitation and there's a lot to it. I mean, David, I know I have people who will call grandparents and they will call and they'll be like, well, but I'm the grandparent. Obviously something is going on. I don't have the contact I once did. I have a right to have that contact. But it's not that simple, is it?

Speaker 2 (12:13):

No, it's not. Whenever normally the phone calls we get are, I want to find out about my grandparent rights, and I generally tell grandparents or family members who are calling that, well, it's not really a right, it's a statutory grant to request visitation or other contact, but it's not really a right. The parents are the ones who have the rights, the grandparent and other family members, they have the right to, or there I go again. Sound right. They have a statutory grant to request a court to basically order visitation. Going back to where we were right before the break, a grandparent may call in and think, well, gee, it's clearly in my grandchild's best interest to spend time with me. But we talked about how there has to be that component of harm. And there was a case kind of the first time that the Georgia, not the Georgia, but the US Supreme Court heard this issue was in a case called Troxel v Granville, which went up to the US Supreme Court, I think in the late 1990s.

(13:16):

But basically what it was, there was a Washington statute, a grandparent visitation statute that said a court could permit any person at any time to petition for visitation with a minor child if the court felt it was in the child's best interest. And the US Supreme Court said, no, that's unconstitutional. You have to show more than that. And so grandparents don't really have that, right, that a parent has. Basically what the constitutional theory is that the state can intervene if there is harm to the child. And so many of these statutes, especially the one in the state of Georgia, which if you want to get technical is OCGA 19 dash seven dash three. What it basically says is that if a court finds that there's harm, that the child will suffer harm, then the court can intervene in the case or allow a grandparent to come in and intervene and request a schedule a visitation. And so that's basically what you have to show. You have to show harm. And that's why in these cases it's hard to obtain a relationship, but it's easier sometimes to have visitation, to maintain.

Speaker 1 (14:38):

Absolutely. And that's where sometimes in my conversations with people, I have the hardest time because people want to inject basic logic. I was in the child or children's lives, I'm the grandparent, I've always been a loving grandparent, and why don't I just have a right, why can't I just step back into that role and have that same or similar contact? And then explaining that again, it isn't a right, it's not incredibly logical, right? I mean, it's not just something that is very intuitive and you're just like, oh yeah, of course I have. You have to sort of wrap your head around the fact that you are asking the court to abridge someone else's rights to basically go against the rights of the parent. And to do that and to go against what is a constitutional right, courts are going to take that very seriously, and therefore there are these additional criteria.

Speaker 2 (15:39):

And that's exactly it. When you look at these statutes, what they say is, is that the family member, and we're going to use the example of the grandparent because that's the most common. They have to show that the health of the welfare of the child would be harmed unless visitation is granted, and if the best interest would be served by the visitation. So you have the component of harm. And initially when these statutes were written, there was also a Georgia case where the Georgia Supreme Court kind of wrote the harm requirement into the statute in order to uphold it. But the statute initially said best interest. And the Georgia Supreme Court said, well, that's not really constitutional, but we're going to read it to say that you have to show harm. They came up with criteria. Basically what those criteria are, has the child resided with the grandparent?

(16:34):

That's when for six months or more, we see that a lot. The grandparent says, Hey, parent, the parents were not married. The father had the child and they lived with us for a year. That's one of the criteria. Or we've been providing the financial support for this child. We've been paying for the childcare, we've been paying for food, we've been paying for shelter, or the child was coming over every day. We were the childcare provider. So the extent of the relationship can be shown based upon those criteria, and the court can also look at anything else that would kind of prove the prior existing relationship. But there are those three kind of primary ones, and those are the main ones that you see the grandchild live with. The grandparent probably, maybe even along with the parent, they were both living there or maybe the parent was not living there.

(17:34):

You get these cases, and I used to have these all the time. The parent had the child and they said, Hey, mom and dad, can I come home for a week or two? I lost my apartment and I lost my job, but we'll be out in a week or two. And then they come there and they end up leaving the child or they have a substance abuse issue and they're in out of the parent's home, but always leaving the child there. And so that grandparent is establishing that relationship, providing care, providing financial support, because that parent, if they have a drug issue, they're more than likely not working and providing any financial help. So the grandparent, they're doing everything. And so the way the statute is written, if we can show those things, then the grandparent can ask the court and say, look, I've got this relationship because basically I've been the parent, I've been the parent, I've been the one who's raising this child. They've lived here for the past five years, and now mother, father wants to take the child away and it's not going to be in, it's not their best interest, but it's going to harm them because they have no place to live. Or they've moved in with this other person who is going to be a bad influence, or they don't have a house, they're living at the back of the extended stay hotel, whatever, they don't have any place to go, so it's going to harm the child. And

Speaker 1 (18:51):

Yeah, so let's focus on that use of the word harm because there's two different types of cases. There's a case, there's going to be a case where the harm is simply that. All those things you were just talking about, that there is a longstanding relationship between a grandparent and a grandchild that maybe the grandchild lived in the grandparent's home, maybe the grandparent every day was doing daycare, but bottom line is for an extended period, grandparent was not just peripherally, but was directly involved in the child's life, and then they move out or they stop using that grandparent for daycare purposes. And obviously if they're moving into a very unhealthy situation, then that's not good. But then you have others where it's not that they're moving into an unhealthy, they don't have a home, they're living in a car, whatever, something obvious. It could just be that something happened between grandparent and their child and their child. The parent of the grandchild is now saying, yep, no more contact for you. And they're living in a fine home. They're living in a good neighborhood, the children are being taken care of. How do you show harm there?

Speaker 2 (20:11):

Well, generally, and I've had those cases, okay, so generally what you have to show is the extensive nature of the prior relationship. And if you look at the case law and read the cases, trial courts often will take the word of the grandparent with regard to whether there would be harm. They don't always have to have an expert. And when I look at these opinions, every time they come out, I go in, I read the facts, I want to see what evidence was presented to the court, what did the trial court hear, who they hear from with regard what the harm was. And a lot of times it's the grandparent saying, well, I raised this child and I think they will be harmed because they won't get to see me. They don't get to talk to me. We had a very close relationship. I was the ball coach, or I was the one who took them to the school, the school knew me.

(21:03):

They don't know the mother or the child would come and spend summers with us every year. So we do have those cases as well where it's not so much parental inability, which is then reestablished and the parent can care for the child. Sometimes it comes down to a power struggle, and that's what happens in a lot of these cases. And it's unfortunate, but we do get those cases as well where it's not so much an issue that the parent was not appropriately caring for the child, but that something happens. Somebody gets mad and they say, you know what? We're done

Speaker 1 (21:39):

Before we go into the break. I'm going to say this very fast. I don't always say, you must have an attorney. You don't, in Georgia at least, you don't need to have an attorney. You can go into court, you could try and do things on your own. You can handle things, pro se, it's called, I will tell you, and hopefully you're getting already from what we're talking about and all this information, you understand that this is pretty tricky. If you are dealing with this, at the very least, go consult with an attorney like David where you can ask these questions because it's not as simple as, I love that grandchild, and therefore, please give me time. There are a lot more criteria that you need to meet, and we're going to go into that when we come back. Hey everyone, you're listening to our podcast, but you have alternatives, you have choices. You can listen to us live also at 1:00 AM on Monday morning, on WSB. If

Speaker 3 (22:36):

You're enjoying the show, we would love it if you could go rate us in iTunes or wherever you may be listening to it. Give us a five star rating and tell us why you like the show.

Speaker 1 (22:47):

Welcome back everyone to Divorce Team Radio, sponsored by the divorce and family law firm of Merriweather and Tharp. I'm your host, Todd Weston. If you want to read more about us, check us out online@atlantadivorceteam.com. If you want to read transcripts, go back and listen to shows. Again, you can find them@divorceteamradio.com. Alright. Today we are talking about grandparent visitation and we are lucky to have with us David. David Canal has a depth of knowledge when it comes to this topic. And as I was saying, going into this break, it's not as simple as people think. And anyone who has gotten to this point in the show and has listened, I think you're starting to get it. You're starting to understand that this is an area of law that it's very interesting to lawyers, but it's very painful to a lot of people.

Speaker 2 (23:42):

Oh,

Speaker 1 (23:42):

Absolutely. Yeah, because David, usually people are calling because they had a relationship and that has been taken away from them, their ability to have contact with their grandchild, and they're calling basically saying, Hey, I need help. And by the way, we represent on the other side. Also, sometimes, sometimes unfortunately, the grandparent isn't the most helpful and I'm being kind here, but they're fighting for certain rights. But we go into defense mode where we are basically saying we are going to protect the parents' constitutional rights, and we start looking and maybe the grandparents aren't the upstanding citizens that they are trying to portray. So it goes both ways, but nonetheless, we're just focusing generally on the ability of grandparents to fight for some visitation time with a child. And we've been talking about the law, we've been talking about some of the case law and some of the requirements, but let's talk about Georgia. Alright, let's do a little bit more of a deep dive now about Georgia, the statute, Georgia case law. Where do you want to start?

Speaker 2 (24:59):

Well, let's just start with basically who the statute covers, Todd. So it used to be just grandparents, but now it's family members, which means if you look at the statute, and once again, it's OCGA 19 dash seven, dash three, basically it applies to family members, which are defined as grandparents, great grandparents, and siblings, which is the last one. If you look at the statute, it's basically talking about aunts and uncles, but basically it covers family members. It doesn't cover step grandparents. So sometimes you have a grandparent who comes in and they're just like, maybe it's the grandmother or the grandfather, but not the both of them. So that's one thing to keep in mind. But basically what it allows, it allows a family member to come in and file an original action for visitation or to intervene in an action that is already pending in a court.

Speaker 1 (26:00):

And give a little bit more on that. What does that mean to intervene? What

Speaker 2 (26:03):

That means is basically to join into litigation that's already pending. So if there's a divorce case, the parents are arguing over custody, well, that would allow a family member to come in and intervene. Now, when that happens, it's what we would call an intervention of, which means the court has to let you intervene. If you want to come in, join the case, fight for visitation, the court has to let you in. It doesn't say the court has to grant the visitation, but the court has to let you in. So that's what an intervention is. And the other circumstances when a grandparent, not just any family member, but a grandparent, what the statute says comes in and files their own action against one of the parents to get visitation now, but you cannot file an action if the child is living with both parents and the parents are living together. So if you have a dispute with your child over your grandchild and the parents are living together, they're married, there's no action to intervene in because there's nothing pending. And you cannot come in and file your own case against them because the child is living in an intact family with both parents. And so it's prohibited at

Speaker 1 (27:15):

That point. And let, let's focus on that because we get a lot of calls in situations like this where grandparent was very involved, grandparent helped out when they needed help, has a strong relationship and a lot of contact historically with a grandchild. But the husband and the wife who are still together get angry, something happens. And now the relationship between grandparent and the parents has soured. And the parents say, well, no more contact between you and our children, your grandchildren. Yep. You're saying that basically, unfortunately in that situation, Georgia law does not permit the grandparents to still step in and file a case because the mother and the father are still together.

Speaker 2 (28:03):

That's correct. Now, you need to keep in mind that it would not mean a parent and a stepparent. It means both biological parents of the child are living together. Now, it doesn't say they had to be married. So even if the parents are unmarried, if the mother and father of that child or children are living together and the child is living with them, then a grandparent has no right to file an original visitation

Speaker 1 (28:29):

Action. And let me also build on that because I had a case, and instead of telling you what happened, I'll just pose it as a question. What about a case where the mother and the father divorced? They were living separate and apart, but the mother biological and the father biological didn't agree on anything except for one thing, which was that the grandparents should not have contact with the kids. It's not intact, it's not an intact home, but the biological parents agree on this one thing, that contact between the grandparent and the children would not be healthy for the children. Does that same restriction restriction apply?

Speaker 2 (29:17):

No, it would not, because the grandparent would still be authorized to file an original action because parents are divorced. The child or children are not living with both parents. So a grandparent could still file an original action. Now, one of the problems with that though is that the grandparent is going to have their own child saying, judge, don't let my parents around my kids. Right?

Speaker 1 (29:45):

That's exactly it.

Speaker 2 (29:46):

And a lot of times in these cases, it's the other grandparent. It's like the maternal grandparent against the father or the paternal grandparent against the mother. But in that particular case, you've got the actual child of the grandparent who is joining in saying, heck no. I don't want my kids around these people, for whatever reason. So even though the action can be brought, it's a little chance

Speaker 1 (30:16):

Of success.

Speaker 2 (30:17):

Yeah. Well, I mean, that's hard. That will depend upon the evidence. Okay? Right. Is there harm? Okay. Because the court can still override the wishes of the parent if there's harm. If you can show that the welfare or health of the child would be harmed and that it's in the child's best interest, you can still override that. And I will tell you, some of the toughest cases I've had in this area, Todd, are the ones where I'm representing, let's say a grandparent or I'm representing a grandparent against their own child, or a parent against their own parent, meaning not the maternal grandmother against the father, or not the father against the maternal grandmother, but the father against the paternal grandmother, or vice versa. Those are the toughest ones. Like the parent of the child is fighting their own parent. You would think it's one thing if, well, we understand that the maternal grandmother and the father never really got along, or we understand that the mother and the paternal grandmother don't see eye to eye. That's like the typical in-law kind of thing, where you would expect there sometimes to be some acrimony. But the toughest ones are where the blood relations are fighting each other. Those are the toughest wants.

Speaker 1 (31:39):

And going back to the even post-divorce where you have two biological parents who may not see eye to eye on anything, but the agreement is there that there should be no contact between the grandparents and the child. And especially when there might be some evidence to support that maybe it's not healthy contact, it becomes incredibly difficult. And I've seen a case where grandparents push that issue. And I'll be honest with you, they pushed long and hard and they ended up paying for it. They ended up literally truly paying for it. They got hit with legal fees. And so again, another reason why at the very least, go talk to an attorney because there are a lot of pitfalls here. There are a lot of issues that you need to take into consideration if you're the grandparent, because you don't want to start down the path only to at some point be told, not only are you not going to get the contact you're fighting for, but by the way, all those fees incurred by the other side are now your responsibility.

Speaker 2 (32:53):

That can happen. And I will mention this, the statute does not provide necessarily for the award of attorney's fees, but if it turns out there are the statutes as we know, like 9, 15, 14, which is kind of a technical thing, but to the extent that the grandparents are bringing a frivolous action, they very well could be hit with attorney's

Speaker 1 (33:14):

Fees. That's right. That's right. So, alright, when we come back, we're going to continue this discussion about grandparent visitation and let's talk about some tips. Let's talk a little bit more about different kinds of scenarios and tips that people should be thinking about if they are going to be bringing this kind of an action or maybe even defending against one. And we'll go into it when we come back.

Speaker 3 (33:43):

I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB. So you can always check us out there as well.

Speaker 1 (33:54):

Better than counting Sheep, I guess, right? That's right. You can turn on the show and we'll help you fall asleep.

Speaker 3 (34:01):

There you go. I'll

Speaker 1 (34:01):

Talk very

Speaker 4 (34:02):

Soft.

Speaker 1 (34:06):

Welcome back everyone to Divorce Team Radio, a show sponsored by the Divorce and Family Law firm of Merriweather and Tharp. I'm your host, Todd Orton. And if you want to read more about us, check us out online, atlanta divorce team.com. You want to read transcripts, listen to shows, divorce team radio.com. Alright, we're talking about grandparent visitation, long time coming, a big issue people call about all the time. And I knew we needed to do a show. I also knew I needed somebody who could intelligently talk about the issue. And that's David Canelli, partner at Merriweather and Thorpe. David, again, welcome and let, let's keep jump in. We sort of skirted around the issue. Jump in by talking about the specific criteria under Georgia's grandparent visitation law.

Speaker 2 (35:00):

Sure. So we have spoken about that there are two components, harm in the best interest. So that Georgia statute basically states that in order to prevail on an action for child or for visitation rights, that the court has to find by clear and convincing evidence. And for attorneys, we understand most cases in a civil court are the preponderance of the evidence, which means just a little bit more than 50% maybe if you're thinking about it clear and convincing might be around 75 or 80%. So the court has to have a lot of evidence. So Cary convincing evidence that the health or the welfare of the child will be harmed unless visitation is granted. So basically you have to show some sort of harm to the child health. Maybe that means that the grandparent is more familiar with the child's medical needs or that a parent is unable to provide for the child welfare.

(36:03):

That can be a very large category, but you have to show some sort of harm. And then also you have to show that it's in the child's best interests to have visitation. So there are some criteria in the statute that the legislature has laid out and says the court can consider and may find harm to the child is reasonably likely to result when prior to the bringing of the action, any of the following have occurred. So the minor child resided with the family member for six months or more. The family member provided financial support for the basic needs of the child for at least one year. There was an established pattern of regular visitation or childcare by the family member with the child or any other circumstances indicating emotional or physical harm with likely result. So the last one is kind of the catchall, but the first three are the ones that we find generally to be very common.

(36:59):

When a grandparent is inquiring about this, they generally call and say they've lived with me for five years, or we've been paying all the bills for the past two years, or we pay for the childcare, we pay for the private school, we send food every month, or we are having to pay the rent. So there's a pattern of financial support or regular visitation. We're the childcare provider, child has been coming to us and spending weekends with us because the parent travels or any other circumstance which would cause the grandparent to be caring and spending a lot of time with the grandchild. So those are the specific criteria. So when you're looking at a case like this from an attorney perspective, we want to know what evidence is there of these. As an example, if the grandparent comes in and says, well, they've lived with us for the past three or four years.

(37:52):

Well, are there any records of that? Is the child enrolled in a daycare and the address provided to the daycare, is the grandparent's address financial support? Do you have receipts now? Does your bank statement show or withdrawal every month to the parent's landlord? Do you have receipts or evidence that you've been paying the copays? When the child goes to the doctor, can you prove that you were buying the diapers? Are there extracurricular activity, fee payments? Are the grandparents the ones who are paying for the child to play on the baseball team? Things like that. Regular visitation or childcare, other photos? Do you have a journal? Some clients will come in and they'll say, we have a calendar. And I had a client once who had a calendar that showed every night when the child spent with her and it went on for three or four years.

(38:52):

I mean, she had a calendar that said, me, me, me, mom, and then another, me, me, me for 30 or 40 nights. And then mom, that evidence is really good because when they go into court and they're testifying, well, the child has always lived with me. Okay, well, do you have any evidence of that? Well, the child's always lived with me. Well, the other parent comes in and says, no, the child's lived with me. Well, if you have a document, if a parent or a grandparent can say, yes, I've got evidence, I've kept a calendar for the past five years. Is this a copy of that calendar? Yes, that's the first year. Well, can you look at this and you can introduce it to the court, judge, here's a calendar my client has kept notes. That's much more convincing to a court than when the other side comes in and says, no, that never really happened, Charles with me.

Speaker 1 (39:44):

Yeah. And David, we've said this numerous times on the show, it is not just what you think, it's what you can prove. And I don't care what kind of a case you're talking about, we as attorneys, we will hear the story, but then the second they're done telling the story, we're going to say, okay, let's talk now about what can you prove? I hear the story, I hear what you're saying happened or didn't happen. Now let's try and prove it. Do you have calendars? Do you have pictures? Do you have receipts? All of those things. That's what the court's going to want. And so while I will say this, if you come in, let's say to meet with David or any other attorney, be thinking about not just going in, especially if it's a paid consult, don't just think in terms of you're going in to talk about and tell your story.

(40:38):

Be ready as much as possible. Be ready to show some of this evidence because you don't want someone just to hear your story and go, yep, you've got a case high five, let's do it. Because they may look at the evidence you have or don't. And suddenly that story changes. You know what? Hey, I don't think you have as strong a case as we thought. Correct. So if you're going to go in, I'm not saying you must, but if you're going to go in and meet with an attorney, the best advice I have for you is listen to this show. Or if you've listened to this show, now start thinking in terms of, okay, what can I prove? And therefore, when you sit down with the attorney, you can sort of lay it out silver platter style, and hopefully at that point the attorney can go, Hey, this is great. There's clearly a great relationship between you and the grandchildren. And while we can't guarantee, I think you have a strong case.

Speaker 2 (41:36):

Well, and also what you want to think about is even prior to meeting with an attorney, if as a grandparent you are kind of seeing things come up on the horizon that we may have a problem here. If you think a problem is starting to develop, start amassing your evidence. Maybe that's the time. If you have not kept a calendar, maybe that's the time to start keeping the calendar. Maybe that's the time to start collecting the photographs. Maybe that's the time to start asking maybe other friends, family members or neighbors. A lot of times anyone can be a witness, maybe your next door neighbor who has seen the child there every day for three or four years. Sure, that child's always out in the front yard. Have you ever seen the mother? No, I don't think I've ever met the mother. What about who's dealing with the child?

(42:26):

Well, the grandpa in the grandma, they're always out in the yard playing with the child. That kind of evidence can substantiate the preexisting relationship, the length of the relationship. So there's all kinds of evidence that you can bring in, but what it really takes is the ability to think about that into amass that evidence. So I would encourage any grandparent or family member who is thinking that they might be facing this issue to start keeping their records as best they can. You may need them, you may not. But if the time comes when you need them, you'll have it. And it's a lot better to have it then, rather than to try to go back and think, well, geez, when was Mary with us? When did she first move? Was it 2017 or 2018? Well, gee, I don't really remember. You want to have that information as best you can.

Speaker 1 (43:16):

And David, as we head into the end of the show, what are some other proactive tips people can be thinking about if they might be facing this kind of an issue?

Speaker 2 (43:26):

Yeah. Well, Todd, with these, when I look at these cases, a lot of times they come down to a power struggle between a parent and the grandparent. The grandparent has to walk the fine line of not being too overbearing and too demanding, but still trying to preserve the relationship if they can. Sometimes you have to go along and get along. You have to wait for the perfect opportunity if you need to litigate to file that. So sometimes that's a strategy because what happens is when these cases are filed, even if the grandparent or family member is successful in obtaining the visitation that they want, first of all, the statute says basically, if the court's going to award it, it's going to be at a minimum 24 hours in a month, but they may not end up with every other weekend, something like that. So sometimes you have to take what you're able to get, but ultimately, if you file litigation, you have to be aware. Sometimes this will just destroy the relationship between the parent and the grandparent, even if the visitation is awarded. I've seen that happen. It's unfortunate.

Speaker 1 (44:30):

Yeah. Another unfortunate thing is we are out of time. So everyone, thank you so much for listening. David, thank you so much for joining and educating us about grandparent visitation. I hope it helped. Thanks for listening.