The relationship between grandparents and their grandchildren is a special bond to be treasured.
However, there are family situations that can put grandparents at odds with their adult children over their grandchildren, driving them into legal confrontations.
Depending on the circumstances, grandparents can seek to enforce their visitation rights or, in more extreme cases, seek custody of their grandchildren. So, it’s vital that grandparents understand that they have well-established legal rights.
When grandparents seeking custody or visitation rights with their grandchildren first meet with legal counsel, the lawyer needs to assess the situation. First, what is the relationship between the grandparents and the grandchildren? Another consideration is whether the minor children are residing with the grandparents and for how long that has occurred. The lawyer also will want to know if the grandparents are providing financial support and whether the minor children have special or unique needs that the parent or parents are neglecting.
Can Grandparents Enforce Visitation and Custody Rights?
Factors That Favor Grandparents’ Visitation
Visitation disputes are common in scenarios when an adult child has died but has children and the remaining parent doesn’t want the deceased spouses’ parents to see those grandchildren.
Under Georgia law, grandparents can file their own, original court action or they can intervene in a pending case, such as those involving:
- The custody of their minor grandchild.
- Divorce between the child’s parents.
- Termination of the parental rights of either parent.
- Legitimation / paternity actions.
- Modification cases concerning visitation rights to a minor child.
- Whenever there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent.
But grandparents cannot pursue visitation with a grandchild who resides with both parents if the parents have not separated and the child is living with both parents.
A court may grant grandparents visitation rights if the judge finds by clear and convincing evidence that the health or welfare of the child would be harmed if it isn’t granted and grandparent visitation is in the best interests of the child.
The court considers four factors in determining whether to grant visitation, including prior to filing the original action of intervention:
- The minor child resided with the grandparents for six months or more.
- The grandparents provided financial support for the basic needs of the child for at least one year.
- There was an established pattern of regular visitation or child care by the grandparents with the child.
- Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.
Grandparents should be aware that in Georgia, the child’s parent has the right to request that the court amend or revoke the visitation. But, the parent has to show good cause for the requested change.
Going for Custody as a Grandparent
Grandparents have seen themselves increasingly thrust into the role of parenting for their grandchildren, especially due to the growing opioid crisis and related family trauma. According to a U.S. Census Bureau report on the crisis, in 2016 there were 7.2 million grandparents living with their grandchildren, and more than 2.5 million were responsible for their grandchildren’s basic needs.
There are several ways parents can lose their parental rights and consequently allow grandparents to get custody of their grandchildren. Under Georgia law, some of the ways those parental rights can be lost include:
- Voluntary contract releasing the right to a third person such as the grandparent.
- Consent to the adoption of the child.
- Failure to provide basic necessities for the child or abandonment.
- Cruel treatment of the child.
- A Superior Court order terminating parental rights of the legal father or the biological father who is not the legal father of the child in a petition for legitimation, a petition to establish paternity, a divorce proceeding or a custody proceeding.
Most judges are very protective of a parent’s right to parent. Courts in Georgia presume that it is in the best interest of the child or children for custodial rights to remain with the parent or parents. But that presumption may be overcome by showing that an award of custody to the grandparent is in the best interest of the child or children.
That said, a court won’t ignore clear and blatant evidence of neglect or abuse. The longer the grandparents have been involved with their grandchildren and contributed to their financial well-being, the friendlier the court will be to their custody request.
A version of this article originally appeared on https://www.bcntrlaw.com/.
Jordan Whitaker is an associate at Boyd Collar Nolen Tuggle & Roddenbery, where she counsels clients in all facets of family law, litigating and negotiating issues from the basic to the most complex. www.bcntrlaw.com