The Georgia Supreme Court, in the case of Worley v. Whiddon, 261 Ga. 218, confirmed that since visitation is part of custody, the wishes of a 14 year old regarding visitation are important. But the trial court still has authority to set visitation rights based on the best interests of the child, including not only the child’s wishes but also other factors.

Court has supervisory power over child’s decision

The court essentially has supervisory power over a 14 year old’s decision not to visit the noncustodial parent. This supervisory power protects both the child and the noncustodial parent from coercion by the custodial parent.

As a practical matter, if you have a child over age 14 who wants not to visit the noncustodial parent, you should file a petition to modify visitation if you support the child’s decision. Otherwise, you could be subject to a contempt action regarding visitation.

If you are a noncustodial parent whose child does not want to visit you, your course of action may depend on whether you believe the child is making an independent judgment or acting under coercive influence of the custodial parent. Counseling involving the child and the noncustodial parent can be of assistance in navigating conflict that interferes with positive visitation experiences. Optimally, the parties and the child together decide on terms of a modification that takes the child’s wishes into consideration and continues contact with the noncustodial parent.

Parents who rigidly enforce their schedule and other “rights” without consideration of their child’s wishes or feelings are making a mistake. As a child nears adulthood, each parent must begin to navigate their relationship with their child independently of the other parent and the court’s enforcement powers.

Hindson and Melton LLC can assist you in evaluating your best course of action. We represent both mothers and fathers.

© Karen S. Hindson, Hindson & Melton LLC February  4, 2014

ALSO SEE:

• CHILD SUPPORT MODIFICATION AND CONTEMPT OF COURT
• CUSTODY ELECTION 14 YEAR OLD
• CUSTODY ELECTION 14 YEAR OLD – PARENTING PLANS

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

A child support or child custody modification action has traditionally been filed in the county of the current residence of the Defendant.  Contempt of court actions have been filed in the county that granted the original divorce, the theory being that the Court that entered the original order was the only court that had jurisdiction to decide whether to hold a party in contempt for failure to comply.

For some years, there has been an exception to the normal rule, permitting a Defendant to file a “counterclaim” for contempt along with the answer to a modification action.  The Ford v. Hanna case announces the Supreme Court’s conclusion that the Petitioner can now combine a modification action and a contempt action together in the same Petition.  The proper county for filing the action is the county of the Defendant’s residence, in order that the Court will have personal jurisdiction over the Defendant.

Thus, for example, if a parent needs to petition the Court to modify custody and change the visitation schedule, and the Defendant also has failed to abide by the Court’s original order to pay child support or medical expenses, both the modification and contempt actions can be combined in a single action filed by Petitioner in the Defendant’s county of residence.

Hindson & Melton LLC can assist you in evaluating your Georgia child custody, child support, and modification questions.  We will help you formulate a course of action appropriate to your situation.  Our offices are convenient to metro north Atlanta and Dunwoody, Sandy Springs, Roswell, Alpharetta, and Marietta, and we accept cases throughout the extended metro Atlanta area.

© Karen S. Hindson, Hindson & Melton LLC, March 11, 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