Visitation Rights of Grandparents in a Georgia Divorce

O.C.G.A. section 19-7-3 governs the grant of visitation rights to grandparents. If the biological parents are not separated, and the child is living with both parents, grandparents have no legal right to petition for visitation rights. The position of united parents is binding. Unfortunately, even if the grandparent is being completely excluded from the child’s life, the grandparent has no legal right to challenge a decision of unseparated, united parents, even if the parents are being grossly unfair. Atlanta Visitation Rights Attorney Russell Hippe always considers this carefully with his clients in advance of any hearing or final trial.

However, if the parties are separated, or if a divorce is pending, or if a biological parent of the child has died, has had parental rights terminated, or is incarcerated, then a grandparent can petition for visitation. This can be either a new action initiated by the grandparent, or the grandparent can move to intervene in a pending divorce. To ultimately succeed in obtaining a visitation order, the grandparent must demonstrate that a failure to award visitation to the grandparent would “harm the health or welfare of the child” and would be in the child’s best interest. If the custodial parent (the surviving parent or the spouse awarded primary custody in a divorce) is firmly against visitation, this may be an uphill fight. The wishes of the custodial parent are not binding, but the “emotional harm” standard is higher than the classic “best interests of the child” standard applicable in custody disputes between the biological parents / spouses.

However, if the child has already been living with the grandparent or any third party (as opposed to a biological parent), the higher "emotional harm" standard may not apply. Per McConaughey's Georgia Divorce, Alimony and Child Custody, 2012-2013 edition, "In a grandparent visitation case where the child is in the temporary custody of a third party such as another grandparent ..., it is not necessary that the petitioning grandparent prove that the child would be harmed without visitation, but only that visitation is in the best interest of the child by a preponderance of the evidence."

The pertinent provisions of O.C.G.A. section 19-7-3 (b)(1) provide: “ … 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 …”

Upon the filing of an original action or upon intervention in an existing proceeding under this code section, the court may grant any grandparent 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”. Factors to consider include whether:

(A) The minor child resided with the grandparent for six months or more;
(B) The grandparent provided financial support for the basic needs of the child for at least one year;
(C) There was an established pattern of regular visitation or child care by the grandparent with the child; or
(D) Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.

While a parent's decision regarding grandparent visitation shall be given deference by the court, the parent's decision shall not be conclusive when failure to provide grandparent contact would result in emotional harm to the child.