Attorney Tiffany Lunn of Lunn Law LLC Answers: What’s An Example of Grandparent’s Obtaining Visitation Rights In Georgia

Attorney Tiffany Lunn read Georgia Supreme Court ruling Vincent v. Vincent  (A15A1244) handed down in September of 2015 that demonstrates the different standards that should be used for ascertaining if Grandparent’s Rights should be awarded. In Vincent,  the parental grandparents petitioned the court for grandparents’ rights because their son (the biological  and legal father) was incarcerated and they wanted access and visitation time with their grandchildren.. Georgia law  on grandparent’s rights is s driven by O.C.G.A §  19-7-3.

O.C.G.A § 19-7-3 reads as follows in its respective parts: “(a) As used in this Code section, the term “grandparent” means the parent of a parent of a minor child, the parent of a minor child’s parent who has died, and the parent of a minor child’s parent whose parental rights have been terminated.

(b) (1) Except as otherwise provided in paragraph (2) of this subsection, any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child, a divorce of the parents or a parent of such minor child, a termination of the parental rights of either parent of such minor child, or visitation rights concerning such minor child or whenever there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent, notwithstanding the provisions of Code Section 19-8-19.

(2) This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both parents.

(c) (1) 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.

(d) Notwithstanding the provisions of subsections (b) and (c) of this Code section, if one of the parents of a minor child dies, is incapacitated, or is incarcerated, the court may award the parent of the deceased, incapacitated, or incarcerated parent of such minor child reasonable visitation to such child during his or her minority if the court in its discretion finds that such visitation would be in the best interests of the child. The custodial parent’s judgment as to the best interests of the child regarding visitation shall be given deference by the court but shall not be conclusive.

In Vincent, the Georgia Court of Appeals and Supreme Court of Georgia found that the trial court had rendered its decision in error by relying solely on subsection (c) of O.C.G.A § 19-7-3 that grants visitation only upon the showing that the health or welfare of the child would be harmed unless visitation is granted and if the best interest of the child would be served by visitation. The higher courts found this was the wrong standard to be used based on the facts and circumstances of this particular case.

The trial court should have relied on subsection (d) of  O.C.G.A § 19-7-3 because the petitioners’ son was incarcerated.  In this case, the court may award reasonable visitation to the grandparents if the court finds that such visitation is in the best interest of the child. You can read the complete opinion here.

 

 

 

Attorney Tiffany Lunn Is Frequently Asked This Question: Can I Put My Spouse Out Of The Marital Home?

Attorney Tiffany Lunn says: No, unless you have a court order that gives you exclusive possession of the martial residence then you cannot remove your spouse even if the residence is titled solely in your name.  The first step toward removing your spouse would be to file for divorce or separate maintenance.  You can request exclusive possession of the residence prior to a final hearing by filing a Motion for Temporary Hearing and requesting and being awarded this property until dissolution of your marriage or finality of the case.

If your spouse is abusive and you are the victim of domestic violence then you can request a Temporary Protection Order. You can request exclusive possession of the marital home upon these facts as well.  If the court finds you believable then your request will be granted on an ex parte basis.  You will shortly after have to attend a court hearing for your Protection Order to be extended.  At this hearing, your spouse will have the opportunity to dispute your allegations of abuse.

Police are often called to martial homes regarding this vary issue.  As a general rule, law enforcement are going to inform you that you must seek court intervention and present a court order for them to get involved. If you have any further questions about this issue, you should contact Attorney Tiffany Lunn of Lunn Law LLC at 770-492-2974 or another experienced family law attorney to explore your legal options in Georgia. It is imperative that you not take matters into your own hands especially if uninformed about the possible consequences.

Division of Marital Home

 

 

Published in: on June 13, 2016 at 5:28 pm  Leave a Comment  
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Social Security Benefits: Divorce and Death

Divorce and death are highly relevant to one’s Social Security Benefits.  However, many do not give this much consideration especially during dissolution of marriage.  A couple’s 10th anniversary has legal significance in this respect.  However, this significance will not remain relevant to the same degree for much longer due to the national budget. Attorney Tiffany Lunn suggests you read more about this at: How Divorce and Death Affect Social Security Benefits.  You should follow-up with questions by contacting a family law attorney for clarity.

Published in: on May 27, 2016 at 7:54 pm  Leave a Comment  
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Federal Estate Tax Is Set To Increase in 2016

The federal estate tax is set to increase for those single and married. Knowing this can be important for those that are mindful of estate planning and legacy. This yearly statistic is important to watch for those that have an estate of 2 million plus because in recent years that has been the lowest threshold for implementation of the tax. There a special rules as applies to the threshold for married couples. Practically speaking, having a tax professional and financial planner can take some of the stress out of determining what needs to be done in order to avoid any complications.

Having your estate in order is immensely important regardless of the size of the estate.  Attorney Tiffany Lunn thinks that those that are interested in the federal estate tax threshold for 2016 should peruse the following: http://www.forbes.com/sites/ashleaebeling/2015/09/18/2016-projections-for-estate-and-gift-tax-limits-in/

 

Published in: on November 7, 2015 at 6:19 pm  Leave a Comment  
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Georgia Adoption By Lesbian Couple Was Not Given Full Faith And Credit In Alabama

A case involving same-sex adoption in Georgia is denied recognition in Alabama.  The Alabama Supreme Court found the Decree of Adoption void because the parental rights of the biological mother were not termination prior to the adoption.  The Court further found that this was an unfulfilled requirement under Georgia Law and that if the case had been challenged in Georgia, the appellate court in Georgia would have also found the Decree of Adoption void. Therefore, the Court refused to give the judgment

The Alabama Supreme Court is referencing The Official Code of Georgia § 19-8-5 (a) when a child is to be adopted by a third party: “Except as otherwise authorized in this chapter, a child who has any living parent or guardian may be adopted by a third party who is neither the stepparent nor relative of that child, as described in subsection (a) of Code Sections 19-8-6 and 19-8-7, only if each such living parent and each such guardian has voluntarily and in writing surrendered all of his rights to the child to that third person for the purpose of enabling that person to adopt the child”.

The problem some have with the ruling is that it involves a lesbian couple, artificial insemination where one partner gave birth to the children and other adopted.  The biological mother fully consented to the adoptions.  However, the Alabama Court argues the consent is not enough.  It was her parental rights staying intact that is the issue.

The National Center of Lesbian Rights released a statement that “Although the Alabama Supreme Court recognized that full faith and credit prohibits a state from inquiring into the laws applied by a court from another state, it ruled that Alabama did not have to respect the Georgia court’s adoption because the Court believed that Georgia law did not allow same-sex parents to adopt,”

Attorney Tiffany Lunn thinks that what this case showcases more than anything is the changes in family structures that are underway that the law in many states have not taken into account.  New and emerging laws will be making their footprints across the county.  State appellate courts will be busy determining in what direction their state will go.  Stay tune to see what direction, the appellate courts in Georgia take.

Article Discussing Alabama Ruling

Alabama Supreme Court Ruling

Motion To Set Aside Judgment

Once a judgment is reached in a divorce or other domestic matter, litigants find themselves in a huge hole trying to get the judgment set aside (or for the court not to let the Final Order stand).  Having a judgment set aside and/or attacked depends on a number of issues including why the court is being asked to set aside the judgment and the applicable time frame from the judgment being entered to it being attacked.  Depending on the reason for attacking a judgment, such attack may be more time sensitive than for other reasons per the Official Code of Georgia.

If a judgment is set aside, the judgment is therefrom inoperative and ineffective. However, a judgment will not be set aside without a sound legal basis.  The Georgia Code is strict on how and why a judgment can be attacked. If you need to attack a judgment you should speak with an experienced attorney about your matter.  Attorney Tiffany Lunn of Lunn Law LLC recently appeared in Fayette County Superior Court to assist in attacking a Motion to Set Aside.  Attorney Tiffany Lunn and Lunn Law LLC have offices in both Jonesboro and Fayetteville, GA and represent clients in Metro-Atlanta regarding divorce, custody and other domestic conflicts. Lunn Law LLC can be contacted at 770-492-2974. Find out more about a Motion to Set Aside at Justia Law (quoting Official Code of Georgia).

 

Official Code Pictures

 

 

Fayette County Office Location

Fayetteville Office

 

Lunn Law LLC and Attorney Tiffany Lunn have opened a satellite office location at 110 Habersham Drive Fayetteville Ga 30214.  Lunn Law LLC’s Fayette County location was opened to better assist those south of the main office in Jonesboro, GA. Lunn Law LLC will still maintain its central pub office in Jonesboro, GA (Clayton County) and Attorney Tiffany Lunn will be serving the Fayetteville,GA location as well.  If you would like to contact Lunn Law LLC, you should call 770-492-2974.

The main website for Lunn Law LLC and Attorney Tiffany Lunn can be found at www.lunnlaw.com.

Published in: on February 3, 2014 at 2:39 pm  Comments Off on Fayette County Office Location  
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Name Change Via Marriage License: Georgia DMV Says “No” to Same-Sex Couples

Same sex couples are running into problems in states such as Georgia that do not recognize same-sex marriage.  Couples are finding that they can’t even get their name change with their marriage license from another state through Georgia Department of Motor Vehicles. Same-sex advocates are finding this occurring throughout the southern part of the country. Advocates say that the federal government is attempting to makes the transition for same-sex couple smooth but that the state government is not.

Name changes can take place through the court system but will cost hundreds of dollars to finalize.  Many same-sex couples refuse to pay this amount for something that hetrosexual couples get for free. Advocates are attempting to get states that don’t recognize same-sex marriage to make what they consider a small step in the right direction without same-sex marriage being legal in the state. Advocates of same-sex marriage believe that state agencies have the power to interpret its policies to allow a name change in a state where same-sex marriage is not legal.  

Attorney Tiffany Lunn believes that Georgia should expect increased litigation on the issue in months and years to come. Advocates are determined to obtain certain rights and the courts will likely have to rule one way or the other.  Advocates do not think it’s as clear as same-sex marriage is not legal under Georgia law.  Stay tuned to see how these matters develop. You can read more at: http://www.huffingtonpost.com/2013/10/17/same-sex-couple-name-change_n_4111173.html.  If you need assistance with Domestic Partnership Agreements or other documents that can assist same-sex couples in Georgia, feel free to contact Attorney Tiffany Lunn for legal assistance.

Published in: on October 20, 2013 at 8:22 pm  Leave a Comment  
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Temporary Protective Orders in Georgia

Attorney Tiffany Lunn represents both alleged victims and alleged victimizers regarding Temporary Protective Orders.  Both parties must be diligent in taking action if abuse is alleged.  All alleged victims are not victims and all alleged victimizers are not falsely accused.  It is important that each takes the appropriate course so that they has the best chance possible in presenting the facts for the judge and the appropriate action can be taken.

When going to court for a Temporary Protection Order to be granted or denied, the parties must know  that other aspects of their lives may be affected by the Protection Order.  Attorney Tiffany Lunn has spoken with those either seeking an order of defending against an order that are not aware of how such an order may affect their lives.  Criminal implications and consequences can also affect and be affected by a Temporary Protection Order Hearing. Therefore, Attorney Tiffany Lunn believes preparation for the Temporary Protection Hearing can not be overlooked.

Attorney Tiffany Lunn advises that parties seek legal counsel early whether via private counsel or through an organization such as Legal Aid. Give your attorney enough time to prepare your case efficiently. Do not wait to the last minute for something so important.  There are various organization to assist, if money is a factor in any procrastination.  Stalking, violence and threats of violence (and allegations pertaining to them) are extremely serious.  Seek assistance.

Published in: on August 18, 2013 at 12:34 pm  Comments Off on Temporary Protective Orders in Georgia  
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Another Matter Of Domestic Violence

Domestic Violence is a problem in Georgia and nationwide. Those in the military are not immune to its reach. Expert testimony can be important in cases such as this. There can be many motives for domestic violence and/or murder.Image

In this case, it appears the motive was monetary.  It is oftentimes power and control. Attorney Tiffany R. Lunn thinks this is a case worth learning from. Read more below:

Article: Soldier’s Wife Died After Deadly Struggle

Published in: on July 2, 2013 at 9:57 pm  Comments (1)  
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