Research confirms the importance of fostering
the emotional bond between children and their grandparents, but strained family relationships may make this impossible without assistance from the courts. The hurdle grandparents have been forced to overcome when asking courts to intervene to resolve visitation disputes has been legal recognition of the parental right to make decisions about what may in the best interest of a child. While honoring the rights of parents, Georgia law, including one that went into effect this year, offers hope for grandparents wishing to maintain their relationship with their grandchildren.
Grandparents petitioning courts for visitation
The Georgia statute permitting grandparents to seek the assistance of the courts to grant visitation with their grandchildren contains explicit recognition of the rights of parents. The law, O.C.G.A. ? 19-7-3
, permits grandparents and great-grandparents to intervene in an already pending court action involving the following:
Custody of their grandchild
Divorce between parents of the grandchild
Termination of rights of their grandchild?s parent
Visitation rights of the grandchild
Adoption of the grandchild by a blood relative or stepparent
The statute specifically limits grandparents to intervening in a pending court proceeding. They may not file their own court action if their grandchild resides with both parents who have not separated or divorced. One of the reasons for this limitation on grandparents? rights dates back to a case decided by the U.S. Supreme Court almost two decades ago.
The Supreme Court in ruled in Troxel v. Granville
that states could not interfere in child-rearing decisions made by parents, including limiting contact with grandparents, absent proof of the child?s care and best interest not being properly served by the parents. The Georgia law reflects the Troxel decision by requiring clear and convincing evidence by the grandparents of harm to the health or general welfare of a child by the failure of the parent not to allow visitation by grandparents.
Factors courts take into account when grandparents seek visitation
As important as fostering a relationship might be to grandparents and their grandchildren, Georgia law does not recognize it as a factor to be used by judges when asked to override a decision made by a parent. Instead, judges must base the decision to grant visitation to grandparents on whether the child?s health or welfare may be harmed.
Grandparents seeking visitation would have to provide evidence proving the child lived with them for at least six months and there was also regularly established visitation when the child was not residing with them. They must also prove they were the primary source of financial support providing for the child?s basic needs for at least a year.
Judges may also take into consideration evidence proving other circumstances that could adversely contribute to the child?s physical or mental welling if the requested visitation was not granted. State law recognizes how difficult it may be for grandparents to obtain visitation through the courts, it encourages the use of mediation to assist the parties to achieve an amicable resolution of the matter. It also permits judges to order the parties to participate in mediation prior to scheduling a formal hearing on the request for visitation.
New Georgia statute may help grandparents to assert their rights
The Equitable Caregiver law
went into effect on July 1, 2019 in Georgia. The law authorizes individuals without a family relationship with a child to seek parental rights, including custody or visitation, as the child?s equitable caregiver.
A person petitioning the court to become an equitable caregiver must prove to have fully and completely taken on the role of parent of the child, including caretaking, and has established a relationship with the child that was supported or fostered by the child?s parent. Grandparents who have assumed a role in caring for and nurturing their grandchild may find a more acceptable path through the courts in part because the law does not require proof of harm to the health or welfare of the child if the request is not granted.
Enforcing grandparents? rights requires sound legal guidance
Navigating through the courts to enforce their rights can be a daunting experience for grandparents. The law permitting grandparents to seek visitation places a heavy burden of proof on them that requires the knowledge and talents of an attorney experienced in handling cases to enforce grandparents? rights. Consulting with an attorney whose practice focuses on family law may offer insight and guidance to determine options available to grandparents, including how the new Equitable Care law may apply and offer relief.