Grandparent Custody and Grandparent Visitation

By Noel H. Benedict


How can a grandparent in Georgia take custody of a grandchild? Are grandparents entitled to visitation? How do I tell which is the best solution? Is it a right or a privilege? Is there a difference between grandparent custody and grandparent visitation. To understand the issues you need to understand the Georgia statute regarding this complex issue of grandparent custody and grandparent rights.

Grandparent custody and grandparent visitation are two very different matters. Obviously grandparent custody means that grandparent(s) now has custody of the child and the parent will owe the grandparent(s) child support. Grandparent visitation in a court setting would mean a court order that gives the grandparent visitation with the grandchild. In this discussion we will look first at Grandparent Custody and then Grandparent Visitation.

Georgia has a specific statute entitled O.C.G.A. § 19-7-1 (b.1) that governs the right of a grandparent to seek custody of a grandchild from that child’s parent. That statute deals with custody actions involving a child, in which one Party to the custody action is the parent of the child and the other Party is either a grandparent, great-grandparent, uncle, aunt, great aunt, great uncle, sibling, or adoptive parent. In a custody dispute between a parent and a grandparent (or those other limited individuals mentioned above), parental power may be lost by the parent if the court hearing the issue of custody, in its sound discretion and taking into consideration all of the circumstances of the case, determines that an award of custody to a third party (such as a grandparent) is for the best interest of the child or children and will best promote that child or children’s welfare and happiness. The statute provides there will be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third person is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.

In actuality, though, this statute can not be taken exactly at face value. The constitutionality of that statute was in question before the Georgia Supreme Court in an important case called Clark v. Wade; 237 Ga. App. 587; 544 S.E. 2d. 99 (2001). The issue before that court was whether the statute was constitutional in how it applied to the taking away of a parent’s parental rights to a child.

The court determined that the statute was constitutional when it was applied with the following two-prong test: First, the third party, that being the grandparent(s), must prove by clear and convincing evidence that the child will suffer physical and emotional harm if custody were awarded to the biological parent. This is important because the “clear and convincing” evidence test is not expressly stated in the statute. Once the court has determined that there is clear and convincing evidence that the child will suffer physical or emotional harm if custody is awarded to the biological parent; then the third party, that is the grandparent(s), must show that an award of custody to the grandparent will best promote the child’s welfare and happiness.

Of course, in cases where a child has been physically abused by a parent, then meeting the first prong of the test for a grandparent to get custody of the child should be relatively easy. The obviously more difficult part is where the long term harm to the child which must be proven by clear and convincing evidence is psychological harm. Obviously, one way to prove psychological harm is with a psychological evaluation by a qualified psychotherapist. In a custody dispute, a judge specifically has the right to require a psychological custody evaluation for the family or an independent medical evaluation. Another way psychological harm might be proven is through the testimony or observation of the Guardian ad Litem appointed by the court to determine what would be in the best interest of the child or children. In fact, it appears that in at least one recent Appellate Court case, the determination that the child’s being in the mother’s custody would adversely affect the child’s mental well-being seemed to have primarily come from the Guardian ad Litem. That case is Lidely v. Bowen; 272 Ga. App. 479; 612 S.E. 2d. 625 (2005).

Each custody dispute case must be evaluated by its own set of facts. Decisions made by courts on grandparent custody differ from each other for different sets of facts. The court in these determinations is required to look at all of the facts, not just opinions. Therefore, these kinds of cases can be quite complex and require a direct conversation between the attorney and grandparent-client with an initial evaluation and really can not be subject to a general evaluation.

Grandparent visitation is an entirely different matter. Grandparent visitation in a court setting would mean a court order that gives the grandparent visitation with the grandchild, such as one weekend per month, some holidays, and vacation time visitation. As an example, the statute on grandparent(s) visitation is different and not subject to constitutional challenge because it does not take custody from a parent. There is, however, a Georgia statute on grandparent visitation. The statute which expressly encourages grandparent visitation is found at O.C.G.A. § 19-9-3(d). The statute reads, “It is express policy of this state to encourage that a child have continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the right and responsibility of raising their child after such parents separated or dissolved their marriage or relationship.” Sometimes parents are able to recognize the need for the child to maintain a relationship with his or her grandparents, whether paternal or maternal relatives; but when communication breaks down during the divorce process or afterward, a grandparent may need to ask for visitation through a court of law.

Issues of grandparent visitation or grandparent custody are complex issues which are best handled by a competent attorney. Noel H. Benedict & Associates is ready to help you find a legal remedy for your particular situation.

Above specific legal cases cited from the Official Georgia Code, Annotated.