If you regularly make annual gift tax exclusion gifts to family members, or think you may want to start, consider leveraging your gifting with an irrevocable trust.  Call the Atlanta law firm of Hindson & Melton LLC for more information about annual gifting, irrevocable trusts, and other estate planning ideas to benefit your family.  And have a great 2018!

© Karen S. Hindson, Hindson & Melton LLC

Grandparent visitation rights law

Georgia has enacted a grandparent visitation rights statute.    “The statute was enacted to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild, where, as here, a child’s parent objects.  In this regard, the statute codified a standard for the trial courts to utilize in balancing the wishes of an alienated grandparent, the rights of the parents, and the interests of the child.”  Van Leuvan v. Carlisle

Findings of fact and conclusions of law are required

The Georgia law requires the trial judge to make specific, written findings of fact that support its ruling and show in the decision that the court applied the proper evidentiary standard in reaching its decision.   In the Van Leuvan v. Carlisle case, the judge awarded the maternal grandmother visitation and the mother appealed.  The appeals court vacated the trial court’s decision and sent the case back to the trial court because the court did not comply with the law’s requirement to make written findings of fact and demonstrate that the proper evidentiary standard was applied.

When might grandparents get visitation?

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.

Examples of facts that could be important include:

• the minor child lived with the grandparent for at least six months
• the grandparent provided financial support for the basic needs of the child for a year or more
• there was an established pattern of regular visitation or child care by the grandparent
• other facts that  indicate that emotional or physical harm would be reasonably likely to result if such visitation is not granted.

Application of the law is sometimes complicated

See our 2012 article for more information about Georgia grandparent visitation rights.  There are limitations in the law on when grandparents can bring a new case regarding visitation, and under what circumstances a grandparent can intervene in an ongoing case.    Because the U S Supreme Court has said that parents have Constitutional rights regarding their children, attorneys and trial court judges must carefully comply with the requirements of the law before grandparent rights will be upheld if appealed by a parent.  The grandparent must show by “clear and convincing evidence” that the child will be harmed without the visitation and the visitation is in the best interest of the child.  This is the evidentiary standard that is required because of the parent’s Constitutional due process rights.  The trial court’s written decision must demonstrate that the court applied this standard in making its decision and explain the decision with written findings of fact.

Guardian ad litem for the child

The Court will sometimes require the grandparent seeking visitation to pay the total cost of a guardian ad litem for the child, if the grandparent can afford the expense without hardship.

Mediation to try to resolve the grandparent visitation dispute

Sometimes, the Court will order mediation between the parties to seek an agreement in the child’s best interest.  Ideally, the parties can set aside their personal conflicts and work out an agreement that best meets the child’s needs.  Sometimes, however, this is not possible and the Court must make a decision in the court’s discretion.  The Court is required by law to substantiate it’s decision with findings of fact that the Court says constitute clear and convincing evidence supporting its decision ordering visitation.  If the trial court does this, its decision will not be overturned on appeal unless the appeals court finds the trial court judge abused his discretion.

© Karen S. Hindson, Hindson & Melton LLC – August 24, 2013

ALSO SEE:

• CHILD OVER AGE 14 CAN CHOOSE NOT TO VISIT THE NONCUSTODIAL PARENT
• PATERNITY AND LEGITIMATION
• STEPARENT ADOPTION

This week I’ve had the opportunity to work with several families to compose wills, health care advance directives, and other power of attorney documents.  When the documents were complete, in each case,  the daughter or the mother, or both of them, looked at me and said, “Thank you. This is a wonderful gift for Mother’s Day.  We can relax knowing that this is taken care of.”  I’m glad to know that their families will be having joyous Mother’s Day celebrations, just like my family will.

Happy Mother’s Day!

In June 2008 the parents of a 2 year old girl died, and the maternal grandmother filed a “deprivation” action in Cobb County Georgia Juvenile Court seeking custody of the minor child.  The Juvenile Court awarded temporary custody to the grandmother.   Subsequently, in October 2008, the juvenile court gave the maternal grandmother custody of the child until she turns eighteen years of age under the deprivation statute.

Meanwhile, the maternal aunt and uncle filed in the Cobb County Superior Court for permanent custody of the minor child in August 2008.  After the juvenile court awarded long term custody to the grandmother in October, the aunt and uncle amended their Superior Court petition to seek a change of custody from the grandmother.  In June 2010, the Superior Court found it was in the child’s best interest to give permanent custody to the aunt and uncle rather than the grandmother.

On appeal, the Georgia Court of Appeals overturned the Superior Court decision, citing the doctrine of priority jurisdiction, and giving priority to the Juvenile Court ruling.  (This doctrine provides that where courts have concurrent jurisdiction in a matter, the first court to act acquires exclusive jurisdiction to proceed.)   The Court of Appeals decided that the juvenile court order first giving the grandmother custody prevented the superior court from acting to award permanent custody to the aunt and uncle.

The Georgia Supreme Court agreed to hear the case on appeal from the Georgia Court of Appeals.  The Georgia Supreme Court reversed the Court of Appeals decision, finding that the doctrine of priority jurisdiction did not apply in the case because the juvenile court and superior court did not have “concurrent jurisdiction” in the matter (did not both have jurisdiction to hear the case).  The Georgia Supreme Court said the juvenile court does not have jurisdiction over petitions for permanent custody of a child.

The background facts of this specific case are unknown to the author of this blog; however it does not go unnoticed that the people fighting over custody of this little girl from 2008 to 2013 are mother and daughter – maternal aunt and maternal grandmother of the child.  Such fact gives rise to the question of whether a custody battle is really in the best interest of the child and whether it can be avoided in good conscience.  Except in extreme circumstances, extended family members should be able to work together to craft an arrangement to cooperatively provide the best possible care and custody for a child.  Sometimes, that is not possible, and a court must make the decision between competing relatives.  In such cases, you want to be in the right court to begin with so you get a binding decision.

Which Georgia court has jurisdiction over child custody cases such as this?

Rule #1: If a divorce action between the parents is pending and a child is alleged to be “deprived”, the juvenile court and superior court have concurrent jurisdiction over the temporary custody of the children.

What is a “deprived child”?

A “deprived child” is one who:

(a) Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals;

(b) Has been placed for care or adoption in violation of law;

(c) Has been abandoned by his or her parents or other legal custodian; or

(d) Is without a parent, guardian, or custodian.      O.C.G.A. § 15-11-28(8).

Rule #2: The juvenile court has exclusive jurisdiction over a deprivation action in which there is a bona fide allegation that the child is deprived.  OCGA § 15-11-28(a)(1)(C).  (Note that Rule #1 would only apply if there is a divorce action pending between the parents).

Rule #3: The juvenile court has exclusive jurisdiction for most cases involving the termination of parental rights.   Exception:  The Superior Court has concurrent jurisdiction to terminate parents rights when the termination is in connection with an adoption proceeding.  OCGA § 15-11-28(a)(2)(C).

Rule #4:  Sometimes the Superior Court issues an order transferring a legitimation or custody and support petition to juvenile court for decision; in that case the juvenile court has concurrent jurisdiction with the Superior Court to hear the case.  OCGA §§ 15-11-28(c)(1), (e)(1).

Rule #5: The juvenile court may award temporary custody of a child as part of a deprivation action in which they have exclusive jurisdiction; however the juvenile court does not have authority to award permanent custody without a transfer order from superior court.  OCGA § 15-11-28(c)(1).

Rule #6: The juvenile court has authority to place the child in the custody of a willing and qualified realtive until the child’s eighteenth birthday, if the juvenile court finds that reasonable efforts to reunify the deprived child would be detrimental to the child and that it is not in the child’s best interest to refer the case for termination of parental rights and adoption.  OCGA § 15-11-58(i)(1)(A).  This long-term arrangement could be modified by the Court before the child is eighteen, and such as case is subject to review every three years to make sure the person who has custody continues to be qualified to care for the child.  OCGA §§ 15-11-40; 15-11-58(i)(1)(D); 15-11-58(i)(2).

The bottom line:

It is apparent that these rules are complicated and full of exceptions.  However, it is critically important to the success of your case that you pursue your action in the correct court.  The rules above demonstrate that sometimes, you have a choice of whether to go to juvenile or superior court, and sometimes, there is only one option.

If you would like to consult with an attorney regarding a potential custody or deprivation case, contact Hindson & Melton LLC.  We will work with you to try to come up with a course of action designed to suit your family situation and the best interest of the child.

Karen S. Hindson, Hindson & Melton LLC, January 7, 2013

Grandparent visitation rights 2012 Georgia case.

A 2012 decision by the Georgia Supreme Court in the case of Kunz v. Bailey, 290 Ga. 361 (Jan. 9, 2012) denied the paternal grandparents the right to file for grandparent visitation rights.    The grandchild had been adopted by the stepparent and the biological father’s parental rights terminated as part of the adoption.  Even though the biological grandparents continued to have a relationship with their biological grandchild for a time, at some point the parents (mother and adoptive father) cut off the biological grandparents’ access to the child.  When the biological grandparents filed for grandparent visitation rights, the trial judge allowed the action to go forward, but the mother and adoptive father appealed and won at the Georgia Court of Appeals and again at the Georgia Supreme Court.

Grandparent visitation rights Georgia statute.

The Georgia statute governing grandparent visitation rights is OCGA 19-7-3.  Generally, grandparents may file an original action (separate case) seeking grandparent visitation rights, but there is an exception if the parents of the minor child are not separated and the child is living with both parents.   In the Kunz case, the appeals court interpreted this statutory exception to include a stepparent who has legally adopted the child – the grandchild was living with her mother and her adoptive father (formerly her stepfather), so a grandparent cannot file an original action.  Further, the court said, when the grandchild’s stepfather legally adopted the child, the child in legal terms became a “stranger” to her biological father and his relatives.

Grandparents may intervene in ongoing cases seeking grandparent visitation rights.

Under the Georgia grandparent visitation rights statute, grandparents also have the right to intervene in and seek visitation rights in any ongoing court action concerning custody of the grandchild, divorce of the parents or a parent of the grandchild, an action for termination of the parental rights of either parent of the grandchild, or an action concerning visitation rights when the grandchild has been adopted by a blood relative or a stepparent.

Grandparent visitation rights depend on best interests of the child.

Whether the grandparents successfully intervene or file a new action, the court may grant any grandparent reasonable grandparent 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.”  OCGA 19-7-3(c)(1).  The statute includes some specific examples of circumstances where a court might find that harm to the child is likely.

Beware pitfalls of timing.

If grandparent visitation rights are granted, the law states that visitation will be at least 24 hours a month.  But there are limitations on how frequently and when grandparents and parents can go to court over the issue of grandparent visitation rights, so it is important to seek legal advice promptly if you have a dispute brewing over grandparents’ access to grandchildren.  Contact Hindson & Melton LLC to discuss your specific facts and concerns.
Karen S. Hindson – July 23, 2012

What if contact with one set of grandparents is not good for the child?  The Georgia Supreme Court upheld a judge’s ruling that prohibited the father from exercising his custodial rights in his parents’ (the paternal grandparents’) presence – there was evidence that the grandparents had been physically and emotionally abusvie of the children, and the father aknowledged that he had broken his promise to never leave his children alone with his parents.   In that case, the court made a specific order regarding the paternal grandparents to protect the children’s best interest, and it was upheld on appeal.  Mongerson v. Mongerson, 285 Ga. 554 (2009).

Grandparents are frequently very involved in their grandchildren’s lives.  If you want to discuss your rights as a grandparent – or your rights as a parent to restrict or promote grandparent involvement with your children - contact Hindson & Melton LLC.
Karen Hindson  - June 13, 2012

• the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child – including denying visitation for a period of more than 90 days, and
• the grandparent maintained a relationship similar to a parent-child relationship with the minor child, and
• awarding grandparent visitation would not interfere with the parent-child relationship, and
• the Court finds that the child’s parents or guardians are unfit — or that there are compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest.

“Grandparent” includes a natural or adoptive parent of any parent to a minor child. South Carolina Statutes 63-3-530 was updated in 2010 to specify the circumstances under which the Family Court has jurisdiction to order grandparent visitation.

Contact attorney Karen S. Hindson if you have questions about whether grandparent visitation might be appropriate in your case.