GRANDPARENT VISITATION RIGHTS UPDATE

Grandparent visitation rights were the subject of another Georgia Court of Appeals decision in July 2013. In the case of Van Leuvan v. Carlisle, the mother of the minor child appealed the trial court’s decision to award grandparent visitation rights to the maternal grandmother.

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.

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