The Challenges Grandparents Must Face in a Grandparent Visitation Case in Georgia

Posted By Austin Buerlein, Esq. On July 29, 2014

Notwithstanding the long recognized importance and benefits of children having active and loving grandparents, the Georgia legislature and Courts have made it extremely difficult for grandparents to secure or compel any rights to their grandchildren.

Georgia has enacted O.C.G.A. 19-7-3, the so-called "Grandparent Visitation Statute", which provides the mechanism for grandparents to secure visitation rights with a child. However, the statute imposes several harsh hurdles for the petitioning grandparent.

First, the statute expressly prohibits a grandparent from pursuing visitation rights "where the parents of the minor child are not separated and the child is living with both parents." This prohibition can impose an unfair result. A common example is where one or both of a child's parents begin to fight with the grandparents over something unrelated to the child (such as money); even though the fight has nothing to do with the child, and it very well may clearly be in the child's best interest to continue to benefit from an ongoing relationship with his/her grandparents, the child's parents can abuse this control and use their personal vendetta against the grandparents (at both the grandparents, as well as the child's, peril).

Additionally, the Grandparent Visitation Statute sets a high hurdle for a loving grandparent to clear. Although a typical burden of proof in a custody case is merely "the child's best interest" (i.e., visitation should be awarded if it is in the child's best interest"), the burden and standard imposed on grandparents is considerably higher. Specifically, a grandparent must also prove that "the health or welfare of the child would be harmed unless such visitation is granted." Furthermore, the statute requires that a grandparent prove their case and such harm clear and convincing evidence - which is a higher burden than the "preponderance of evidence" standard applied to parents in a traditional custody case. And the Court is also required under the statute to include in any order an actual findings of fact in order to support an award of visitation rights (which obligation imposes somewhat of a burden on a Judge to award visitation rights - and requires the Judge to do more work). To quote the statute, which includes certain specific factors to consider:

Upon the filing of an original action or upon intervention in an existing proceeding under subsection (b) of this Code section, 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. In considering whether the health or welfare of the child would be harmed without such visitation, the court shall consider and may find that harm to the child is reasonably likely to result where, prior to the original action or intervention:

(A) The minor child resided with the grandparent for six months or more;

(B) The grandparent provided financial support for the basic needs of the child for at least one year;

(C) There was an established pattern of regular visitation or child care by the grandparent with the child; or

(D) Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.

It should be noted, however, that the legislature has created a narrow exception to this high burden for grandparents, when one of the child's parents have deceased, become incarcerated, or become incapacitated. Under such a scenario, the deceased/ incapacitated/ incarcerated parent's parents may be able to secure visitation rights under a more relaxed and traditional "best interest of the child" standard. However, in such a scenario, the statute suggests the Court should give a higher consideration to the one remaining parent's preferences as to the grandparent's petition.

Additionally, if the above additional hurdles aren't enough, the Georgia Supreme Court recently explained in Belate v. Peden, A14A0240 (7/9/14) that legislature has also imposed additional financial burdens on a loving grandparent who petitions for visitation rights. Specifically, the statute requires the grandparents to automatically be solely responsible for any costs associated with any court ordered guardian ad litem, as well as for any expenses of a mediation, unless imposing such a cost would be "an unreasonable financial hardship." Although the Courts traditionally do appoint a guardian ad litem and order mediation in custody cases, there is no such strict presumption requiring a petitioning parent to pay for such costs; rather, parties are typically expected to equally divide such costs, and/or the allocation of such costs are only ordered after considering the unique circumstances of the pending custody case (e.g., the disparity in financial circumstances between all parties involved; whether one of the parties has been acting overly litigious and unreasonable in the litigation; etc.). Not only can the expenses of a guardian ad litem be very expensive, but one of the opposing parties can easily abuse this automatic imposition against the grandparent by unfairly racking up guardian fees on the grandparent's dime (e.g., insist the guardian perform numerous actions in his/her investigation that they would otherwise not request if it were "on their dime").

Tags: Child Custody, Grandparent visitation