Third Party Custody and Grand-Parent Visitation in the Superior Courts of Georgia

By: Candace M. Williams
Family Law Department Head
Coleman, Chambers & Rogers, LLP

In the 1960s, the "traditional family" consisted of a first-time married mother and father raising their children together under one roof.  This picture is no longer an accurate reflection of today’s modern, nuclear family.   Today, less than half of American minor children are living in a home with married heterosexual parents in their first marriage. Forty-one percent of children today are born outside of marriage.

What are the rights afforded to third party custodians and Grandparent’s?  In general, the law in Georgia puts the best interest of the child above that of any rights or privileges parents or potential parents may have. The rationale can be seen in many facets of the law, including but not limited to: legitimation cases, termination cases, custody and visitation cases involving biological parents and third parties.  Although the standards may vary slightly, the common thread of what is ultimately best for the child is steady and consistent.   Generally, O.C.G.A. § 19-7-1 (b.l)  sets out the standard for a third party permanent custody action brought in the Superior Courts of Georgia.   O.C.GA. § 19-7-1 (b.l) grants a custody right to certain third-party relatives against a parent or parents in certain situations.  It provides:

(b.l)  Notwithstanding subsections (a) and (b) of this Code section or any other law to the contrary, in any action involving the custody of a child between the parents or either parent and a third party limited to grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent, parental power may be lost by the parent, parents, or any other person if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.

Clark v. Wade, 273 Ga. 587 (2001), is the benchmark case construing the application of this statute. The case explored the fact that prior standards of custody between third parties and parents often bore unfair results where you had a case in which there was an absence of a parent- child relationship aside from a biological one.  In Clark v. Wade, the Court held that the parental unfitness standard was replaced by the best-interest-of-the-child standard in O.C.GA. § 19-7-1(b.l).    Id. at 593.   The "best-interest" standard is construed "as requiring the third party to show that parental custody would harm the child to rebut the  statutory  presumption in favor  of  the  parent. Once this presumption is overcome, the third party must show that an award of custody to him or her will best promote the child's health, welfare, and happiness."  Id. at 598.  A showing of harm to the child if custody were awarded to the parent must be physical or significant, long term emotional harm.

In determining whether any physical or emotional harm will result from the parent being granted custody over the non-parent, the Court should consider the specific circumstances of the parties and child(ren) along with the following "harm" factors as specified by the statute.  While the Court’s decision  was largely decided  on procedural  grounds,  it does provide insight into which factors the Court found compelling. The Court noted that the Court of Appeals determined that "mother  had a job working from home, had a stable living environment with her fiance,  had completed  substance  abuse treatment  and  passed drug  tests showing  she was drug free,  had and continued  to receive treatment  for  her mental  health issues,  maintained  a strong bond with her children, and was capable of addressing  the children's  psychological  needs."

In addition to O.C.GA. § 19-7-1, O.C.GA. § 19-7-3 establishes the statutory guidelines and intent regarding the relationship between a grandparent and his grandchildren wherein the grandparent is seeking visitation rights with the child or children in an original action or by intervention in a dispute between parents.  O.C.GA. § 19-7-3 provides:

"(c)(l)  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.

The court shall make specific written findings of fact in support of its rulings.

(2)  An original action requesting visitation  rights shall not be filed  by any grandparent more than  once during  any  two-year  period and shall  not  be filed  during  any year  in which another custody action has been filed concerning  the child. After visitation rights have  been granted  to any  grandparent,  the legal custodian,  guardian  of  the  person, or parent of the child may petition the court for revocation or amendment of such visitation rights, for good cause shown,  which the court, in its discretion,  may grant or deny; but such a petition shall not be filed more than once in any two-year period.

3)  While a parent's decision regarding grandparent visitation shall be given deference by the  court,  the  parent's  decision  shall  not  be  conclusive  when  failure  to  provide grandparent contact would result in emotional harm to the child. A court may presume that a child who is denied any contact with his or her grandparent or who is not provided some minimal opportunity for contact with his or her grandparent may suffer emotional injury that is harmful to such child's health. Such  presumption shall be a rebuttable presumption.

(4)  In no case shall the granting of visitation rights to a grandparent interfere with a child's school or regularly scheduled extracurricular activities. Visitation time awarded to a grandparent shall not be less than 24 hours in any one-month period."

''The legislative intent in enacting the statute was to give a grandparent standing to seek visitation in the unfortunate event that the grandparent's own child has lost his or her parental rights through termination or, as here, through death." Cates v. Jamison, 301 Ga. App. 441,442 (2009) (citing Smith v. Finstad, 247 Ga. 603,604 (1981)).

"Generally speaking, O.C.G.A. § 19-7-3 'allows a court having before it a custody question to grant visitation to the child's grandparents.  The language of the statute and George v. Sizemore, 238 Ga. 525, 233 S.E.2d 779 (1977), and Rhodes v. Peacock, 142 GaApp. 328, 235 S.E.2d 762 (1977), make clear that any such grant is purely discretionary and may be exercised only where the court is considering custody matters and finds that conditions are such that it is appropriate to allow this privilege to the grandparents.  The grandparents have no right to visitation, but only a right to request the privilege of visitation." Welch v. Suggs, 175 Ga. App. 233 (1985) (citing Sachs v. Walzer, 242 Ga. 742 (1978)).

We handle a wide array of third party custody matters and grandparent visitation cases.  Please call our office for a consultation at 770-534-3770.