A prior article summarized the principal avenues available to grandparents in Georgia for seeking custodial or visitation rights to a minor child. In this follow up, we address the burdens of proof and evidence needed for a grandparent to obtain custody of a minor child or rights of visitation from a parent.

A grandparent (and certain other designated relatives) litigating for custody of a child against a parent bears the burden to prove by clear and convincing evidence that the child will suffer physical harm or significant, long-term emotional harm if custody were awarded to the parent. Upon making that showing, the grandparent must further show that an award of custody to him or her will best promote the child’s welfare and happiness.(1)

In determining whether harm exists sufficient to overcome the statutory presumption favoring parental custody, a judge “should consider a variety of factors that go beyond the parent's biological connection or present fitness to encompass the child’s own needs.”(2) Those factors include:

(A) who are the past and present caretakers of the child;

(B) with whom has the child formed psychological bonds and how strong are those bonds;

(C) have the competing parties evidenced interest in, and contact with, the child over time; and

(D) does the child have unique medical or psychological needs that one party is better able to meet.(3)

A judge analyzing those factors should keep in mind the statutory presumption of parental custody, and then award custody to a grandparent (or other petitioning relative) “only when a real threat of harm would result from parental custody.”(4)

Because a grandparent must show that a child “will suffer” physical harm or significant, long-term emotional harm if custody were awarded to the parent, a showing that harm may result cannot suffice.(5) When analyzing the harm a child “will suffer,” a judge may not engage in speculation with respect to future harm.(6)

As with a grandparent’s custody litigation, a grandparent (or other petitioning relative) seeking visitation rights with a minor child must make a clear showing of facts favoring the requested relief. A court may only grant reasonable visitation rights to the petitioning relative “if the court finds by clear and convincing evidence that 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.”(7) The governing statute, however, rejects any suggestion of harm resulting from the mere loss of an opportunity for a child to develop a relationship with a relative, providing in relevant part that the “mere absence of an opportunity for a child to develop a relationship with a family member shall not be considered as harming the health or welfare of the child when there is no substantial preexisting relationship between the child and such family member.”(8)

When a visitation petition alleges more than a mere absence of an opportunity interest, the judge must consider four statutory factors to determine whether harm to a child would result from the denial of visitation to the petitioner. At least three of those factors seem predicated on a prior relationship between the petitioning grandparent (or other petitioning relative) and the child, as follows:

In considering whether the health or welfare of the child would be harmed without such visitation, the court shall consider and may find that harm to the child is reasonably likely to result when, prior to the original action or intervention:

(A) The minor child resided with the family member for six months or more;

(B) The family member 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 family member 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.(9)

(1) Strickland v. Strickland, 298 Ga. 630, 631(1), 783 S.E.2d 606 (2016); and Clark v. Wade, 273 Ga. 587, 598-599, 544 S.E.2d 99 (2001). (2) Clark, supra, 273 Ga. at 598-599. (3) Id. (4) Id. (5) Floyd v. Gibson, 337 Ga.App. 474, 478(1), 788 S.E.2d 84 (2016), citing Clark, supra, 273 Ga. at 599(V). (6) Mashburn v. Mashburn, 353 Ga.App. 31, 46, 836 S.E.2d 131 (2019). (7) O.C.G.A. § 19-7-3(c)(1). (8) Id. (9) Id.