Georgia Family Law Blog

Grandparent Visitation in Georgia

Do grandparents have the right to visit their grandchildren?

In Georgia, grandparents can ask the Superior Court for visitation rights by filing a Petition for Visitation.

There are two ways for a grandparent to seek visitation.

1. File an Original Action for Visitation. A grandparent can file what is called an "original action" for visitation. To file this type of action:

• there can't be any other cases before the court that involve custody or visitation for the child
• the parents of the child must be separated or divorced
• the grandparents can't file this type of action more than once every two years, and
• the grandparents can't file this type of action in any year that another custody action has been filed for the child.

2. Join an Existing Case. A grandparent may get involved in an existing case for custody, divorce, adoption, or termination of parental rights. To do this, a grandparent must show the court two things.

• A grandparent must show the court that the child's health or welfare would be harmed if the grandparent could not visit the child.
• A grandparent must show that visitation is in the child's best interests. It is difficult to show these two things. The court does not presume that grandparents should have visitation rights.

Factors Considered for Grandparent Custody and Visitation

Courts grant visitation or custody to grandparents only when certain conditions provided in state statutes are met. Conditions for a grandparent to attain custody differ from those conditions required for visitation rights. A grandparent should be familiar with the conditions for either custody or visitation before determining whether to file a petition to request either from a court of law. Best Interests of the Child Courts in every jurisdiction must consider the "best interest of the child" when granting custody or visitation rights to a grandparent. In some states, the relevant statute provides a list of factors the court should considered when determining a child's best interests. Other states do not provide factors in the statute, but courts in those states typically identify factors in custody and visitation cases interpreting the state statutes. The following factors in determining the best interest of the child are among those included in state statutes and case law: The needs of the child, including considerations of physical and emotional health of the child, the safety of the child, and the welfare of the child The capability of the parents and/or grandparents to meet the needs of the child The wishes of the parent(s) and the grandparent(s) The wishes of the child, if the child is capable of making decisions for himself or herself The strength of the relationship between the grandparent(s) and grandchild The length of the relationship between the grandparent(s) and grandchild Evidence of abuse or neglect by the parent(s) or grandparent(s) Evidence of substance abuse by the parent(s) or grandparent(s) The child's adjustment to the home, school, or community The ability of the parent(s) or grandparent(s) to provide love, affection, and contact with the child The distance between the child and the parent(s) or grandparent(s) SOURCE: FindLaw

Summary of Georgia Law: Grandparent Custody and Visitation

Grandparents should check a number of provisions in the statutes in their respective states to determine the conditions for visitation, the factors a court must consider to order visitation, and the proper venue to file a request for visitation. Though many state statutes are similar, state courts may apply statutory provisions differently. Every statute requires courts to consider the best interest of the child before awarding custody or visitation to grandparents.

As noted above, courts in a few states have ruled that statutes providing for grandparent visitation violate either the federal or the respective state constitutions. Several states have revised the statutory visitation provisions, but the constitutionality of these statutes may still be in question.

In Georgia, the following law applies:

The custody statute does not list specific factors for the court to consider for determining the best interest of the child. A court may award visitation rights if an action is pending where there is an issue involving the custody of a minor child, divorce of the child's parents, termination of a parent's rights, or visitation rights. Adoption cuts off the visitation rights of the grandparents unless the adoption is granted to a stepparent or a natural relative of the child.

SOURCE: FindLaw (See this site for summaries of other states' laws)

Grandparents Rights

The state of Georgia recognizes that the relationship with a grandparent is important to a child, and gives the grandparents the right to seek visitation when it is otherwise unavailable to them. This might occur when one parent is deceased, or does not get visitation with the children. The grandparents may file a separate action against the custodial parent to seek visitation rights with their grandchildren. However, because of a recent Supreme Court of Georgia ruling, the legislature had to re-write the statute to eliminate the right of the grandparent to intervene where the grandchild is living with both biological parents in an intact family.

The custody of a child cannot be given to someone who is not a biological parent unless it is determined, by clear and convincing evidence, that it would be in the child's best interest to live with a relative other than the biological parent. It is no longer necessary that the parent be found to be unfit.

If fitness of a parent is an issue in deciding custody the Judge will sometimes ask for a Guardian Ad Litem to help investigate from the child's perspective and make a recommendation to the Court.

SOURCE: DivorceNet

Grandparents Rights to Visitation

In recent years, the issue of Grandparent's rights to visitation in divorce has come to the forefront. Sadly, what will often happen in divorce are the parents of the non-custodial parent end up cut off from their grandchildren. This may be especially true if the grandparents and grandchildren live a far distance from each other.

Grandparent's rights have become a controversial issue. On the one hand why should grandchildren be denied time with a grandparent because their parents no longer live together or are getting a divorce? Conversely, at what point does the intervention of the courts infringe upon a person's civil liberties?

People going through a divorce often feel that they have little or no control over their lives anymore. It seems the court system takes over their life, telling them how to live, where to live, how much money to live on and on.

VISITATION

Exactly what is visitation? To put it into its simplest form, visitation is when the court sets a specific schedule for a person to have access to the child. In other words in the case of grandparent's visitation the court will order that the children be made available to the grandparent on specific day for a specified amount of time.

Unfortunately, just because a grandparent is being denied access to their grandchild does not necessarily mean they will qualify for court ordered visitation. Grandparent visitation is governed by statute and case law, and each state has their own laws.

During a divorce, communications between all the parties often breaks down. Every effort within reason should be made to have time with the grandchild before court papers are filed. Mediation is one option available before filing papers. Filing in the courts for visitation should be the last resort.

The requirements for court ordered visitation vary by state. In most, but not all states, if the grandchild's parents are still married the grandparents are not entitled to visitation. Depending upon the state, the following situations may give rise to grandparent visitation:

• Pending divorce
• Parents already divorced
• Parent deceased
• Child born out of wedlock

As you can see, this is a complicated issue. If you are a grandparent that is being denied time, without good reason, you have a big decision to make. Once the decision to pursue visitation the next step is to find a professional that specializes in third party custody and visitation.

SOURCE: DivorceHQ

Grandparents Rights in Georgia FAQ

Do grandparents have any rights of custody or visitation with their grandchildren in Georgia?

Yes, grandparents and third parties (aunts, uncles, other relatives and sometimes even non-relatives) do have rights in Georgia to seek custody or visitation with their grand children (or with the children of others for a "third party"), but there is a very strong preference for natural parents to have custody of their own children.

My grandson has lived with me for the past three years. His parents (my son and his wife) have had little or no contact with him during that time, but now, they want my grandson to live with them. Is there anything that I can do to ensure that my grandson will continue to live with me?

In a custody proceeding between the parents and a grandparent, the court will determine custody based on the best interest of the child standard. This standard requires the grandparent to show that (1) parental custody would harm the child; and (2) granting custody to the grandparent will promote the child's health, welfare and happiness. A grandparent has a more difficult legal standard to meet than does a parent when seeking custody of a child.

My grandchildren have lived with me for the past three years. Their parents (my son and his wife) have had little or no contact with the children during that time, and now, they want the children to live with them. What can I do to ensure that I will be able to spend time with my grandchildren once they are living with their parents?

Georgia law allows grandparents to seek visitation rights with their grandchildren in any case involving custody of the grandchildren, including a divorce between a child's parents. In such cases, the court may grant visitation rights to the grandparent if the court finds by clear and convincing evidence that (1) the health and/or welfare of the children would be harmed unless the visitation was granted and (2) granting the visitation would be in the best interest of the children.

SOURCE: DivorceNet

Court Won't Review Grandparents Case

A widowed father lost his bid Monday to have the Supreme Court decide whether grandparents should have court-ordered visits with his son.

The justices refused to get involved in the dispute between Shane Fausey, a federal-prison guard in Pennsylvania, and his dead wife's mother.

Cheryl Hiller won rulings in Pennsylvania courts giving her regular visits with Fausey's son, Kaelen, over the father's objection.

Grandparents do not have to prove that being kept away would be harmful to their grandchildren in order to get court-ordered visitation, the Pennsylvania Supreme Court said.

Fausey said the court ruling violated his constitutional right to make parenting decisions.

The Supreme Court has never answered that constitutional question and state courts are divided on the issue. Twelve states prohibit courts from ordering grandparent visitation unless it can be shown that the child would be harmed by their absence, Fausey's lawyers said in court papers.

The case is Fausey v. Hiller, 06-863.

SOURCE: New York Times and the following blogs by Grant Griffiths: Grandparent Visitation Blog, Kansas Family and Divorce Lawyer, Kansas Family Law Blog

10 FAQ's About Family Law From the ABA

The following information is provided by the American Bar Association Family Law Section:

Legally, what is marriage? How does one get married?
Most states define marriage as a civil contract between a man and a woman to become husband and wife. The traditional way to marry is to get a marriage license from a state-authorized official, then participate in a formal civil or religious wedding ceremony.

Source: American Bar Association, You and the Law, Publications International, Ltd., 94-95 (1990).

I am getting divorced. Do I need an attorney?
It ordinarily is a good idea to consult with a lawyer about major life events or changes, such as a divorce. S/he will protect your rights, as well as the rights of your children. S/he keeps current with the laws in your state concerning marriage, divorce, marital property, child custody and visitation, and family support. 

How can I find an attorney?
One of the best ways to find an attorney is via referral from other family members, friends, colleagues or professionals (i.e., accountant, therapist, clergy).

Child Visitation FAQ

What does "reasonable visitation" mean?

When a court determines the visitation rights of a noncustodial parent, it usually orders "reasonable" visitation, leaving it to the parents to work out a precise schedule of time and place. This allows the parents to exercise flexibility by taking into consideration both the parents' and the children's schedules. Practically speaking, however, the parent with physical custody has more control over the dates, times, and duration of visits. He or she isn't legally obligated to agree to any particular schedule, but judges do take note of who is and who is not flexible. If you are uncooperative merely to vex your ex, it can backfire when you need to ask the court for something in the future.

Parents have to cooperate and communicate frequently, for the reasonable visitation approach to succeed. If you suspect right off the bat that reasonable visitation won't work, insist on a fixed schedule and save yourself time, angst, and possibly money. If you've already agreed to reasonable visitation and it isn't working out -- for example, one parent is consistently late, skips scheduled visits, or doesn't inform the other parent where he or she is planning on taking the children -- you can go back to court and ask that the arrangement be changed.

Grandparent and Caretaker Visitation Rights

Grandparents, stepparents, and other caretakers often form deep and loving attachments with the children in their lives. Yet when death, divorce, or estrangement tears families apart, these caretakers may find themselves without any legal right to maintain contact with the children they love.

Child Visitation Laws

All 50 states currently have some type of "grandparent visitation" statute through which grandparents and sometimes others (foster parents and stepparents, for example) can ask a court to grant them the legal right to maintain their relationships with loved children. But state laws vary greatly when it comes to the crucial details, such as who can visit and under what circumstances.

Approximately 20 states have "restrictive" visitation statutes, meaning that generally only grandparents can get a court order for visitation -- and only if the child's parents are divorcing or if one or both parents have died. However, most states have more permissive visitation laws that allow courts to consider a visitation request even without the death of a parent or the dissolution of the family, so long as visitation would serve the best interests of the child. Some states allow caretaking adults besides grandparents to make such a petition.

Both restrictive and permissive visitation statutes have been challenged in court by parents who argue that the laws are an infringement on parents' rights to raise their children as they see fit. Courts have made contradictory rulings.