Grandparent Visitation Rights

As a Waycross family law attorney, I often receive calls from grandparents who, for whatever reason, are not allowed to see or visit with their grandchildren.  Often, these grandparents must resort to legal action to seek court-ordered visitation rights with their grandchildren.  Under Georgia law, parents have a constitutionally protected interest in raising their children as they see fit without un-wanted intrusion by any third-parties, including grandparents.  As the Georgia Supreme Court has held, “The right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances.”  Brooks v. Parkerson, 265 Ga. 189, 192, 454 S.E.2d 769 (1995)(cit. omitted).

However, O.C.G.A. § 19-7-3 provides a way for grandparents to petition for visitation rights with their grandchildren under certain circumstances.  This statute, commonly referred to as the “Grandparent Visitation Statute,” was recently amended by the Georgia Legislature, effective May 1, 2012, and many believe the new law expands the protections given to grandparents.

From the outset, it should be noted that both the old law and the new law expressly prohibit a grandparent from filing an original action to seek visitation rights where the parents of the minor child are not separated and the child is living with both parents.

Under the new law, 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.

Furthermore, 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 showing of harm, by clear and convincing evidence, is necessitated by the parents’ constitutionally protected parental rights.

The newly amended statute further provides that “[i]n 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 statute also expressly provides that a court may consider a parent’s decision regarding whether grandparent visitation should be awarded.  It states that “[w]hile 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.”  However, the statute establishes a rebuttable preemption 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.

Other provisions of the new law state that visitation rights, if granted, shall not interfere with the child’s school or extracurricular activities, and that any visitation time awarded to a grandparent shall not be less than 24 hours in any one month period.  Additionally, whether or not visitation is awarded to a grandparent, the court may direct a custodial parent, by court order, to notify such grandparent of every performance of the minor child to which the public is admitted, including, but not limited to, musical concerts, graduations, recitals, and sporting events or games.

The clear intent of the legislature in amending O.C.G.A. § 19-7-3 was to provide Georgia grandparents more tools to seek visitation with their grandchildren.  The Grandparent Visitation Statute has been subject to numerous legal challenges over the years, and the Georgia appellate courts have rendered portions of it unconstitutional in the past.  It is almost certain that the newly amended statute will face similar legal challenges in the future.

If you have a family law matter, perhaps involving grandparent’s visitation rights, and would like to meet with an attorney to discuss your case, please contact our law firm.

Freedom is not free…

Memorial Day, observed on the last Monday in May, commemorates the men and women who died while serving in the United States Armed Services.  It originates from “Decoration Day,” which was first observed three years after the end of the Civil War and which served as a time for the nation to decorate the graves of the war dead with flowers.  In 1971, Congress made Memorial Day a federal holiday by official act.  In December 2000, Congress passed and the president signed into law “The National Moment of Remembrance Act.”  The National Moment of Remembrance encourages all Americans to pause wherever they are at 3 p.m. local time on Memorial Day for a minute of silence to remember and honor those who have died in service to the nation.

We should all be grateful for the sacrifices made by those who have served in the Armed Forces.  Not only have those individuals protected us from harm, but they have protected and secured the constitutional rights that we enjoy as citizens of this great country.  Among those are the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments to the U.S. Constitution that guarantee all citizens certain rights that are utilized in courts of law every day in both civil and criminal cases.  We should never take these rights and liberties for granted, and we should always remember those who have died to protect them.

Adam Ferrell named to “Super Lawyers Rising Stars”

Local attorney Adam Ferrell has been named to the Georgia Super Lawyers Rising Stars list for 2012.  Super Lawyers is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement.  The selection process is multi-phased and includes independent research, peer nominations, and peer evaluations.  No more than 2.5% of all lawyers in Georgia are selected to the Rising Stars list each year.

Mr. Ferrell is a graduate of Mercer University School of Law and was admitted to the Georgia bar in 2004.  His law office is located in downtown Blackshear, Georgia.  His firm focuses on plaintiff’s personal injury law and family law, as well as general practice and litigation.  He also presently serves as attorney for the City of Blackshear and prosecutor in the City’s municipal court.  He also serves as the elected Solicitor-General for Pierce County.  Mr. Ferrell has served as past president of the Waycross Bar Association, past president of the Waycross Jaycees, past chairman of the Satilla Health Foundation, and current president of the James E. Dye Foundation (formerly Waycross College Foundation).  Mr. Ferrell and his wife April (Morgan), along with their two children, reside in Pierce County.