Grandparents' Visitation Rights

By Cordell & Cordell attorney Andrea Johnson

GEORGIA RIGHTS TO GRANDPARENTS

You may have heard that grandparents have no rights in the state of Georgia. Well, that is not exactly the case. In this state, grandparents do not have automatic rights to visitation with their grandchildren.

They do, however, have the right to ask the court for visitation. The one exception to this is that grandparents cannot file an initial action seeking visitation when the parents of the child(ren) are still married.

In order for grandparents to qualify for visitation tights, the standard is higher than the normal standard of proof in a divorce action. Typically, in any custody matter, the standard for the court to use in determining issues involving children is "the best interests of the minor children."

In a visitation action filed by grandparents, the petitioning grandparents must show the court by clear and convincing evidence that the health and/or welfare of the child(ren) will be harmed unless such visitation is granted and that the best interests of the child(ren) will be served. There is no presumption in favor of the grandparents.

Grandparents are limited to filing original actions for visitation with their grandchildren to no more than once in a two-year period.

Parents can petition the court for revocation or amendment of the visitation rights for good cause shown. Like the grandparents, however, parents can file only one original action for termination of rights of grandparents in any two-year period of time.

Prior to 1996, the standard for grandparents obtaining visitation rights was the "best interests of the minor child" standard. This meant that the only thing that the court really needed to consider was whether or not it would be good for the child to have a relationship with his/her grandparents. In most cases, the answer to this question was "yes."

In 1996, however, the Supreme Court of this state evaluated the constitutionality of this statute. On its face, it seems that most people would believe a grandparent visitation statute to be beneficial to society.

However, the greater question posed by the court was how this type of statute affects and/or unnecessarily imposes on a parent’s rights to raise their children without the interference of the state.

Upon evaluation, the court ultimately determined that the state couldn’t intervene in any way on a parent’s right to raise his/her children unless the child was in danger of harm. This included imposing third-party visitation rights on parents.

The new standard for a court to allow or award visitation to grandparents is as follows:

A grandparent must show by clear and convincing evidence that a child would be in harm’s way if the visitation were not granted and that it is in the best interests of the child for the visitation to be granted.

This new standard completely evolved a way of thinking and a grandparent’s ability to obtain court ordered visitation.

Though this seems harsh for loving and concerned grandparents, the reality is that parenting rights are left with the parents and the court cannot intervene at all unless a child is in danger.