Do grandparents have the right to visit their grandchildren?
In Georgia, grandparents can ask the Superior Court for visitation rights by filing a Petition for Visitation.
There are two ways for a grandparent to seek visitation.
1. File an Original Action for Visitation. A grandparent can file what is called an "original action" for visitation. To file this type of action:
- there can’t be any other cases before the court that involve custody or visitation for the child
- the parents of the child must be separated or divorced
- the grandparents can’t file this type of action more than once every two years, and
- the grandparents can’t file this type of action in any year that another custody action has been filed for the child.
2. Join an Existing Case. A grandparent may get involved in an existing case for custody, divorce, adoption, or termination of parental rights. To do this, a grandparent must show the court two things.
- A grandparent must show the court that the child’s health or welfare would be harmed if the grandparent could not visit the child.
- A grandparent must show that visitation is in the child’s best interests. It is difficult to show these two things. The court does not presume that grandparents should have visitation rights.
Grandparents should check a number of provisions in the statutes in their respective states to determine the conditions for visitation, the factors a court must consider to order visitation, and the proper venue to file a request for visitation. Though many state statutes are similar, state courts may apply statutory provisions differently. Every statute requires courts to consider the best interest of the child before awarding custody or visitation to grandparents.
As noted above, courts in a few states have ruled that statutes providing for grandparent visitation violate either the federal or the respective state constitutions. Several states have revised the statutory visitation provisions, but the constitutionality of these statutes may still be in question.
In Georgia, the following law applies:
The custody statute does not list specific factors for the court to consider for determining the best interest of the child. A court may award visitation rights if an action is pending where there is an issue involving the custody of a minor child, divorce of the child’s parents, termination of a parent’s rights, or visitation rights. Adoption cuts off the visitation rights of the grandparents unless the adoption is granted to a stepparent or a natural relative of the child.
SOURCE: FindLaw (See this site for summaries of other states’ laws)
The state of Georgia recognizes that the relationship with a grandparent is important to a child, and gives the grandparents the right to seek visitation when it is otherwise unavailable to them. This might occur when one parent is deceased, or does not get visitation with the children. The grandparents may file a separate action against the custodial parent to seek visitation rights with their grandchildren. However, because of a recent Supreme Court of Georgia ruling, the legislature had to re-write the statute to eliminate the right of the grandparent to intervene where the grandchild is living with both biological parents in an intact family.
The custody of a child cannot be given to someone who is not a biological parent unless it is determined, by clear and convincing evidence, that it would be in the child’s best interest to live with a relative other than the biological parent. It is no longer necessary that the parent be found to be unfit.
If fitness of a parent is an issue in deciding custody the Judge will sometimes ask for a Guardian Ad Litem to help investigate from the child’s perspective and make a recommendation to the Court.
In recent years, the issue of Grandparent’s rights to visitation in divorce has come to the forefront. Sadly, what will often happen in divorce are the parents of the non-custodial parent end up cut off from their grandchildren. This may be especially true if the grandparents and grandchildren live a far distance from each other.
Grandparent’s rights have become a controversial issue. On the one hand why should grandchildren be denied time with a grandparent because their parents no longer live together or are getting a divorce? Conversely, at what point does the intervention of the courts infringe upon a person’s civil liberties?
People going through a divorce often feel that they have little or no control over their lives anymore. It seems the court system takes over their life, telling them how to live, where to live, how much money to live on and on.
Exactly what is visitation? To put it into its simplest form, visitation is when the court sets a specific schedule for a person to have access to the child. In other words in the case of grandparent’s visitation the court will order that the children be made available to the grandparent on specific day for a specified amount of time.
Unfortunately, just because a grandparent is being denied access to their grandchild does not necessarily mean they will qualify for court ordered visitation. Grandparent visitation is governed by statute and case law, and each state has their own laws.
During a divorce, communications between all the parties often breaks down. Every effort within reason should be made to have time with the grandchild before court papers are filed. Mediation is one option available before filing papers. Filing in the courts for visitation should be the last resort.
The requirements for court ordered visitation vary by state. In most, but not all states, if the grandchild’s parents are still married the grandparents are not entitled to visitation. Depending upon the state, the following situations may give rise to grandparent visitation:
- Pending divorce
- Parents already divorced
- Parent deceased
- Child born out of wedlock
As you can see, this is a complicated issue. If you are a grandparent that is being denied time, without good reason, you have a big decision to make. Once the decision to pursue visitation the next step is to find a professional that specializes in third party custody and visitation.
Do grandparents have any rights of custody or visitation with their grandchildren in Georgia?
Yes, grandparents and third parties (aunts, uncles, other relatives and sometimes even non-relatives) do have rights in Georgia to seek custody or visitation with their grand children (or with the children of others for a “third party”), but there is a very strong preference for natural parents to have custody of their own children.
My grandson has lived with me for the past three years. His parents (my son and his wife) have had little or no contact with him during that time, but now, they want my grandson to live with them. Is there anything that I can do to ensure that my grandson will continue to live with me?
In a custody proceeding between the parents and a grandparent, the court will determine custody based on the best interest of the child standard. This standard requires the grandparent to show that (1) parental custody would harm the child; and (2) granting custody to the grandparent will promote the child’s health, welfare and happiness. A grandparent has a more difficult legal standard to meet than does a parent when seeking custody of a child.
My grandchildren have lived with me for the past three years. Their parents (my son and his wife) have had little or no contact with the children during that time, and now, they want the children to live with them. What can I do to ensure that I will be able to spend time with my grandchildren once they are living with their parents?
Georgia law allows grandparents to seek visitation rights with their grandchildren in any case involving custody of the grandchildren, including a divorce between a child’s parents. In such cases, the court may grant visitation rights to the grandparent if the court finds by clear and convincing evidence that (1) the health and/or welfare of the children would be harmed unless the visitation was granted and (2) granting the visitation would be in the best interest of the children.