As an attorney who practices extensively in the area of domestic relations I am often approached by grandparents of children whose parents are involved in a divorce, legitimation or custody dispute concerning their rights to visitation. The stated public policy in Georgia is to maintain continuing contact between children and their grandparents when the grandparents have shown the ability to act in the best interests of the children. To enforce that policy the legislature gives all grandparents in the state the right to file an action for visitation with the minor children. The only exception to that right is when the child’s parents are not separated and the child is living with both parents.
When clients approach me about initiating grandparent visitation I try to verify several particulars. First, that the parents are divorced, second, if the parents were never married, then the biological father of the child must have legitimated the child in order for his parents to have any right to petition the court for visitation. Lastly, I try to determine what kind of relationship the grandparents have had with the grandchildren in the past. A continuous relationship makes the grandparents’ claim much stronger in the eyes of the court. The reason for this is that in any determination of this type, the standard by which the court must make its determination is (1) whether or not the grandparents can show, by clear and convincing evidence, that the health and/or welfare of the child would be harmed without the visitation and (2) whether the visitation is in the child’s best interest. The second part of the determination is usually much easier to show because courts understand how important the relationship between grandparents and grandchildren can be. However, the first part of the inquiry is much more difficult to prove because the grandparents must show that the children will be damaged in some manner without court-ordered visitation. The best way to prove this is by establishing that the grandparents and grandchildren know each other and have spent time with one another and that the children are attached to the grandparents. Where that can be shown, court-ordered visitation for the grandparents will likely follow.
To be sure, the cases are difficult and they usually involve older parents who have difficulty getting along with their adult children or vice versa. However, grandparents have the right to petition the court in this manner even where the parents’ rights have been terminated and where the child has been adopted by a step-parent. Grandparents may even legally intervene in divorce cases where custody is at issue in order to assert their rights to visitation. With these rights in mind grandparents should consider all avenues of relief when their ability to visit with their grandchildren has been cut-off or restricted.
Remember: to submit a question or issue, email me at firstname.lastname@example.org or via U.S. Mail at 132 W. Parker Street Baxley, GA 31513.
An additional point a grandparent in this position should consider is the impact of litigation itself on the custodial family, including the child, and on the grandparent's relationship with the parent. Bringing suit generally destroys any possibility of a civil, let alone amicable, relationship between the grandparent and the custodial parent. Positions harden. The enormous financial and emotional stress the litigation inflicts takes a heavy toll. The family's financial stability may well be threatened, and luxuries like summer vacations, music lessons, new clothes, and college funds are highly likely casualties. If visitation is ultimately ordered, the child is caught in an emotional crossfire for years to come.