Can I Get a Court Order for Visitation with My Grandchildren?

Over the years, I have had many clients complain that time they once treasured with their grandchildren has either been unfairly diminished or flat-out eliminated by the parents. Questions often then arise about what my firm can do to help secure time with their grandchildren. On the other side of the fence, I have also successfully handled cases for parents who complain that grandparents themselves try and overreach into their parenting domain. All in all, however, given the importance of grandparents in children's lives, and armed with new statute for grandparents' rights in Georgia, I find that I can often help to re-build or re-start the grandparent-grandchild relationship more times than not.

In Georgia, grandparents enjoy time with their grandchildren primarily at the discretion and election of their grandchildren's parents. While conventional wisdom states that children ought to have their grandparents' love and influence (and vice versa for the grandparents), what happens when parents refuse to let their children see their grandparents? Can the parents' decision be overridden?

Historically, parents in Georgia are given near-sovereign power to determine what, if any, specific time children should spend with their grandparents. For instance, if parents are living together with their children and are not separated, a grandparents' visitation action will almost certainly fail. Parental decisions as to grandparents not only stand protected by the usually-unbreachable wall of parental power, but are also grounded in our state and federal constitution.

For example, a prior version of the current 'grandparents' rights' statute in Georgia was struck down in the 1995 case of Brooks v. Parkerson when the Georgia Supreme Court cited the "constitutionally protected liberty interest of parents to raise their children without undue state interference." The Court also said that "even assuming that visitation promotes health and welfare of grandchildren, the state may only impose that visitation over parents' objections on showing that failing to do so would be harmful to child."

So, a Georgia grandparent pursuing grandparent visitation rights has to show that denial of visitation is harmful to the grandchild. However, in 2012, Georgia significantly strengthened the hand that grandparents hold when they demand time with their grandchildren through an amended 'grandparent's rights' visitation statute found in O.C.G.A. § 19-7-3. Although this statute does not authorize an original action where the parents of the minor child are not separated and the child is living with both parents, the Georgia legislature expressly added the following language:

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. [Underline emphasis added].

With the legislature specifically stating that denial of contact with a grandparent is presumed to be harmful to the child, a sizable patch of underbrush has been cleared along the pathway a grandparent may take to legally demand and receive time with his/her grandchildren.

Procedurally, a grandparent can file (or, more typically, intervene in) an action for court-ordered visitation whenever any court question concerning the custody of a minor grandchild is raised -- as with a divorce of the parents (or just one of the parents of the grandchild), a termination of the parental or visitation rights of either parent of such grandchild, or an adoption in which the adopted child has been adopted by the child's blood relative or by a stepparent, (or if a parent of a minor child is incapacitated dies, or is incarcerated). In looking at whether the health or welfare of the child would be harmed without grandparent visitation, the court specifically considers, among other things, whether:

  • The minor child resided with the grandparent for six months or more;
  • The grandparent provided financial support for the basic needs of the child for at least one year;
  • There was an established pattern of regular visitation or child care by the grandparent with the child; and/or
  • Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.

At Fox Firm, P.C., we know that grandparents' involvement in their grandchildren's lives is typically a win-win situation. While it is true that some parents may be justified in eliminating such a relationship, most situations will invite some resolution to re-involve the grandparents, whether by court action or mediated resolution. If you find yourself in need of an attorney to pursue or defend against a grandparents' rights case in Georgia, you can count on the experience, knowledge and compassion I have developed since my practice began in 1995.

Should you choose to hire an excellent attorney in this field, I encourage you to contact me by email at dfox@douglasnfox.com, or call my office at (770) 884-7469.