In 2012 the Georgia legislature passed HB 1198, making Georgia statute friendlier for grandparents seeking visitation with grandchildren. The revised statute has not been tested by the judicial branch, but hopes are high that it will hold up to scrutiny by the courts.
The History of Grandparents' Rights in Georgia
Understanding the state of affairs in Georgia requires a bit of history. In the 1995 case of Brooks v. Parkerson, the Georgia Supreme Court found that Georgia's statute for grandparent visitation was unconstitutional.
The court ruled that a parent's decision about visitation could not be overruled without a showing of harm to the child, a difficult standard to meet, but one that possibly influenced the U.S. Supreme Court's decision in the 2000 landmark case of Troxel v. Granville.
The revised statute passed in 2012 upholds the standard that harm to the child must be proven but provides easier avenues for reaching that standard. It also allows certain grandparents to be awarded custody under the easier best interests of the child standard. If a parent of the child is deceased, incapacitated or incarcerated, the parents of that parent can be awarded visitation if the court believes visitation would be in the best interests of the child.
Who Can Sue for Visitation?
In Georgia grandparents still may not sue for visitation of children living in an intact family, which means one in which both parents live with their children.
This provision applies to adoptive parents as well as biological parents. In the 2012 case of Kunz v. Bailey, the Supreme Court of Georgia declined to award visitation rights to grandparents because their case was based on being the parents of the child's biological father. Following the termination of the biological father's parental rights, in 2006 the child was adopted by his stepfather.
The court found that at that point the child "became a stranger to her biological father and his relatives."
In cases not involving adoption, parents of the biological father are considered to be grandparents. It is not necessary for the parents to be married or for the biiological father to have made his status legal.
Two Ways to Sue
Once it has been established that grandparents have standing to sue for visitation, they have two avenues open to them. They may sue for visitation either in an original action or as part of another court procedure, such as an action between parents over custody or visitation, a suit to terminate parental rights, or an action for adoption by a step-parent or relative. Grandparents may not, however, file an original suit for visitation more often than once every two years, and they cannot file a separate petition if a case involving the child is already before the court, or if a case involving custody or visitation has been heard in court during the same year.
The Harm Standard in Georgia
As for the finding of harm, the court is directed to assume that it is "reasonably likely" that harm would occur to children deprived of contact with grandparents in the following situations:
- The child resided with the grandparent for six months or longer.
- The grandparent provided financial support for the child's basic needs for at least one year.
- The grandparent had established a pattern of visiting the child or providing child care.
- Other circumstances indicate that "emotional or physical harm" would result from a lack of contact.
In addition, the courts are directed to give "deference" to a parent's decision about visitation but not to consider such a decision "conclusive." In fact, the court is directed to presume that a child deprived of contact with a grandparent "may suffer emotional injury that is harmful to such child's health." This presumption is, however, "rebuttable."
More Provisions of the Law
In all cases in which visitation is awarded, it "shall not be less than 24 hours in any one-month period."
An interesting provision of the law is that, independently of any visitation order, the court can require the custodial parent to notify the grandparent of all performances, such as sporting events and concerts, in which the child is involved, as long as the public is invited.
If grandparents are granted visitation, parents can sue to have visitation revoked or amended. Again, such suits may be filed only once every two years.
The court is given the ability to appoint a guardian ad litem for the child at the sole expense of the grandparent, provided that the grandparent can afford the cost "without unreasonable financial hardship." The same provision is made for mediation.
Grandparents do not have to have an attorney in order to file for visitation rights. Self-help forms are available from the Southern Judicial Circuit.
See Georgia Code, Title 19, Chapter 9, Section 3 (O.C.G.A. §19-7-3)