Grandparents' visitation rights

The Supreme Court of Georgia clarified the visitation rights of grandparents to visit their grandchildren in a ruling on January 9, 2012. 

The ruling is not so interesting for what it does address (touching on the technical niceties of family situations involving an adoptive step-parent) as the point of law it stands for: that grandparents have no de jure rights to visit their grandchildren if the children's parents are married to one another.

This point of law sometimes relates to estate planning issues, as estate and probate attorneys find they feel like practitioners of "domestic" law far too often. Family rifts wind up in wills and blow up in probate. 

The relevant statute, O.C.G.A. § 19-7-3, is below in its entirety for the reader's reference, as is the Supreme Court opinion. Click the "read more" link to find them.

Tanner Pittman, LLC is an estate planning and probate law firm that regularly advises clients on planning around difficult family situations. Feel free to contact us today about your own such issues.  

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OCGA § 19-7-3. Grant of visitation rights to grandparents

(a) As used in this Code section, the term “grandparent” means the parent of a parent of a minor child, the parent of a minor child’s parent who has died, and the parent of a minor child’s parent whose parental rights have been terminated.
  
(b) Except as otherwise provided in this subsection, 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. This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both of the parents.
   
 (c) Upon the filing of an original action or upon intervention in an existing proceeding under subsection (b) of this Code section, 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 court shall make specific written findings of fact in support of its rulings. There shall be no presumption in favor of visitation by any grandparent. An original action requesting visitation rights shall not be filed by any grandparent more than once during any two-year period and shall not be filed during any year in which another custody action has been filed concerning the child. After visitation rights have been granted to any grandparent, the legal custodian, guardian of the person, or parent of the child may petition the court for revocation or amendment of such visitation rights, for good cause shown, which the court, in its discretion, may grant or deny; but such a petition shall not be filed more than once in any two-year period.

 (d) If the court finds that the grandparent or grandparents can bear the cost without unreasonable financial hardship, the court, at the sole expense of the petitioning grandparent or grandparents, may:
  
(1) Appoint a guardian ad litem for the minor child; and

 (2) Assign the issue of visitation rights of a grandparent for mediation.

 (e) In the event that the court does not order mediation or upon failure of the parties to reach an agreement through mediation, the court shall fix a time for the hearing of the issue of visitation rights of the grandparent or grandparents.

In the Supreme Court of Georgia

Decided:   January 9, 2012

S11G0867.  KUNZ et al.  v. BAILEY et al. BENHAM, Justice.
Appellants Robert and Royce Kunz are the biological paternal grandparents of the child born to appellee Carrie Jean Bailey and appellants’ son. After appellee Douglas Bailey married the child’s mother, he adopted the child in 2006 when appellants’ son terminated his parental rights to the child. Prior to and for a time after the adoption, appellants were allowed to visit the child and maintain a familial relationship with the child.  At some point, however, appellees denied appellants access to the child.  In 2009, appellants petitioned for visitation rights pursuant to OCGA §19-7-3 (b).  OCGA §19-7-3 (b) provides as follows:

Except as otherwise provided in this subsection, 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. This subsection shall not authorize an

original action where the parents of the minor child are not separated and the child is living with both of the parents.

Appellees moved to dismiss the action, but the trial court denied their motion and so appellees sought relief in the Court of Appeals pursuant to a direct appeal under OCGA §5-6-34 (a) (11).

Applying the tenets of statutory construction, the Court of Appeals reversed the trial court’s denial of appellees’ motion to dismiss, concluding the appellants’ original action for visitation was not permitted by OCGA § 19-7-3 (b).  Bailey v. Kunz, 307 Ga. App. 710, 712-713 (706 SE2d 98) (2011).  In support of its decision, the Court of Appeals determined that the term“parent” as used in OCGA §19-7-3 (b) included a“legal father” as found in the adoption statute; and it also determined that the term “parent” as used in the last sentence of OCGA §19-7-3 (b) was not limited to natural parents, but included adoptive parents as well.  Bailey v. Kunz, 307 Ga. App. at 712-713.  We granted appellants’ petition for certiorari and posed the following question:

Did the Court of Appeals correctly “conclude that the limiting language of OCGA § 19-7-3 (b)– forbidding original actions for grandparent visitation if the parents are together and living with the child– includes adoptive parents”?  Bailey v. Kunz, 307 Ga. App.

710 (2011).  Compare Lightfoot v. Hollins, 308 Ga. App. 538 (2011).

Because we answer the question in the affirmative, we must uphold the judgment by the Court of Appeals.

A plain reading of OCGA §19-7-3 (b) offers two avenues by which grandparents may seek court-sanctioned visitation rights to their grandchildren. They can (1) file an original action or they can (2) intervene in an existing court action.  Grandparents may intervene in any action where custody of the grandchild is an issue; in the divorce of the parents or a parent; in the termination of rights case of either parent; in the termination of visitation rights of either parent; and in the adoption of the grandchild by a blood relative or a by a stepparent. Also, by virtue of the limiting language in the last sentence of OCGA §19-7-3 (b), grandparents may only file an original action for visitation when the parents are separated and the child is not living with both parents. In keeping with our decision in Brooks v. Parkerson, 265 Ga. 189 (2) (a) (454

SE2d 769) (1995), the statute does not otherwise allow grandparents, by court action, to intrude upon the “constitutionally protected interest of parents to raise their children.” Id. at 191.

In addition, the statute’s last sentence does not call for distinguishing between any class of “parents,” whether they be natural, adoptive, or some combination thereof. As such, we decline appellants’ invitation to limit the term “parents,” as it is used in the statute, to include only the natural or biological parents of the child.  SRB Inv. Services, LLLP v. BB&T Co., 289 Ga. 1 (3) (a) (709 SE2d 267) (2011); In re T.C.D., 281 Ga. App. 517, 518 (636 SE2d 704) (2006) (language cannot be added to a statute by judicial decree). If the General Assembly intended such a limitation, it would have included specific language

to that effect in the statute. Accordingly, the Court of Appeals did not err when it concluded that the term “parents” in OCGA §19-7-3 (b) did not exclude an adoptive parent such as Mr. Bailey.

The Court of Appeals also did not err when it concluded that the trial court erred when it denied appellees’ motion to dismiss.  When the child’s adoption took place in 2006, appellee Douglas Bailey became the parent of the child and the child became a stranger to her biological father and his relatives, including appellants, as a matter of law. OCGA §19-8-19.  Since Mr. Bailey was the child’s parent at the time appellants filed their original action for visitation in

2009 and the child was living with appellees who were not separated, appellants had no basis to file an original action for visitation under the statute.  Likewise, the State had no compelling basis to interfere with the Bailey family unit which was not separated at the time the original action was filed. Brooks v. Parkerson, supra, 265 Ga. 189 (2) (a).  Therefore dismissal of appellants’ visitation action was the proper outcome and the Court of Appeals judgment is affirmed.1

Judgment affirmed.  All the Justices concur.

1Finally, Lightfoot v. Hollins, 308 Ga. App. 538, 539 (707 SE2d 491) (2011) is disapproved to the extent the judgment therein is not in keeping with this opinion.

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