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Grandparents' Rights: Over the River and Through the Woods, To Grandmother's House We Are NOT Going!

For some of us out there, myself included, we do not have warm and fuzzies about our grandparents. One set of my grandparents passed when I was too little to remember them. They were wonderful and loving people, from what I'm told, and I hate that I did not have a chance to get to know them. On the other side, just a grandmother remained and she was not a great person. She suffered from a terrible alcohol and prescription pill addiction, which made her an abusively belligerent and paranoid woman - obviously not someone a child would want to be around, or the kind of person a parent wants their kids around.

Georgia has really been pushing grandparents' rights, though, and the right of a grandparent to visit with their grandchildren. One prominent provision of Georgia law is OCGA §19-7-3, which is one of a couple of the "grandparent's rights" statutes in the State, and perhaps the most important.

Fair warning: I'm going to focus pretty specifically on the issue of grandparent visitation within grandparents' rights. There are a few other interesting scenarios out there, one of which I litigated concerning what happens when the biological parent of the child dies, but for purposes of brevity I'm going to keep this blog post narrowly tailored to grandparent visitation.

OCGA §19-7-3 says that a grandparent can petition the court for visitation with grandchildren: "Upon the filing of an original action or upon intervention in an existing proceeding..., 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." The grandparent requesting visitation must meet the court's standard by clear and convincing evidence. That's actually a pretty hard standard to meet. It also bears noting that these type of actions are limited to cases where the parents of the grandchildren are separated. Children of parents who are still together are not subject to this statute.

So, how does a grandma or grandpa show that their grandchild would be harmed sans their visitation? Well, the law gives us some guidelines. The Court must consider and may find that harm to the child is reasonably likely to exist when: (A) the minor child has previously resided with that grandparent for six months or more; (B) the grandparent has previously provided financial support for the basic needs of the child for at least one year; (C) there was previously 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. Once the Court assesses whether or not harm would result, it then looks at the facts from a different angle to determine if it would be in the child's best interests for visitation to occur.

If this seems like a heavy burden, you're right, it is. The Georgia Supreme Court and the United States Supreme Court have held that a parent's right to parent is one that should not be disturbed without a compelling State reason. So, if a client doesn't want her alcoholic mother to be involved in her kids' lives, then that's her right. But then we also have to think about the policy behind the statute. Imagine a couple divorces and one grandparent, who was actively involved in the grandchild's life on a daily basis, suddenly becomes alienated from the child's life because the custodial parent doesn't want to hang out with their ex's parents. That isn't necessarily fair to the kid who would've otherwise benefited from the continued presence of their grandparents. 

It's a sad reality but one that happens all too often in our multi-generational society. Due to the complex nature of grandparent custody and visitation cases, as well as the ever-changing case law and nuances, if you are facing anything approaching this situation, I'd highly recommend getting a lawyer to help you. I've now handled several grandparent cases, from varying angles, and can't advise enough how important it is to have an experienced litigator help you tell your story and make this case with you.

I'll have your back over the river and through the woods, whether or not grandmother's house is where you want to go.

Megan Santiago

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