In a perfect world, all parents would properly care for their children and foster the bond between the children and their grandparents. And in a perfect world, all grandparents would be content to act as secondary caretakers and permitted visitors of their grandchildren. In this imperfect world of parental incarceration, drug addiction, neglect or abuse, or of estrangement between grandparents and parents, grandparents may feel compelled to seek custody of their grandchildren or to challenge parents’ refusals to allow visitation. This article explores the principal avenues available to grandparents in Georgia for seeking custodial or visitation rights to a minor child.
Georgia law grants every grandparent the right to file an original action for visitation rights to a minor child, except in situations where the parents of the child are not separated and the child is living with both parents.(1) As an alternative to filing their own visitation actions, grandparents also have the right to intervene in and seek to obtain visitation rights in any pending divorce or other case in which custody of a minor child is at issue.(2)
In an original action or on intervention, a court may grant a grandparent reasonable visitation rights “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.”(3)
In addition to visitation rights, a grandparent may obtain physical and/or legal custody over a minor child under certain circumstances. A grandparent can commence a custody action against the child’s parent or parents and obtain custody, “if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to [the grandparent] is for the best interest of the child or children and will best promote their welfare and happiness.”(4) In such cases, a rebuttable presumption exists that a child’s best interests require an award of custody to the child’s parent or parents, but the grandparent can overcome that presumption by showing that an award of custody to the grandparent is in the child’s best interest.(5)
As of July 1, 2019, another possible avenue exists for a grandparent to seek and obtain child custody. An “equitable caregiver” statute permits a court to award parental rights, including custody or visitation, to a person who in essence has acted as a child’s caretaker, exercised a responsible parental role in the child’s life, and established a bonded and dependent relationship with the child.(6) The petitioning person must demonstrate by clear and convincing evidence “that the child will suffer physical harm or long-term emotional harm and that continuing the relationship between such individual and the child is in the best interest of the child.”(7) Although the statute does not expressly include grandparents within its ambit, nothing in its language excludes them either. Unless and until an appellate court holds otherwise, grandparents who have acted as a child’s equitable caregiver seemingly should be able to seek custody under the equitable caregiver statute.
(1) O.C.G.A. § 19-7-3(b)(1)(A) and (b)(2).
(2) O.C.G.A. § 19-7.3(b)(1)(B).
(3) O.C.G.A. § 19-7.3(c)(1).
(4) O.C.G.A. § 19-7.1(b.1).
(6) O.C.G.A. § 19-7.3.1(d) and (g).
(7) O.C.G.A. § 19-7.3.1(d)(5).