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.