While not as common as cases involving parental rights, we do see quite a few grandparents' rights cases that involve visitation and (less commonly) custody. If you’re a grandparent, you might wonder when you have the right to claim legal visitation and custody—and you might not even know that you had these rights.
The relationship that exists between a child and their grandparents is important and should be encouraged. Unfortunately in child custody cases, maintaining regular contact despite differences between the parents can prove challenging. At Stearns-Montgomery & Proctor, our family law attorneys have been representing families in our area since 1988 who struggle with these types of situations. Our team uses creative strategies to ensure you remain a part of your grandchild’s life, while defending your rights under Georgia laws.
The Role of Grandparents in Child Custody Matters
During a divorce or other types of family law proceedings, issues pertaining to child custody are among those most hotly contested. While the child’s parents tend to be at the forefront in these situations, grandparents may be all but forgotten.
Fortunately, the laws in our state support a grandparent's legal right to see and spend time with their grandchildren. Under the Georgia Code (O.C.G.A. 19-7-3), grandparents may file a petition seeking visitation in any custody action, including cases involving divorce, termination of parental rights, and adoption.
The same guidelines for determining parenting time are used in these proceedings:
- The age and health of the child and grandparents
- Their locations and the distance between residences
- The previous, established relationship between the grandparents and the child
- The ability of the grandparents to meet the child's physical, emotional, and developmental needs
Grandparent visitation issues may arise for a variety of reasons such as:
- A parent denying visitation after a grandparent fights with their child
- A parent denying visitation after returning from a long period of absence during which the grandparents may have taken on roles as guardians or custodians of the child
- Situations when the parent dies or goes to jail and an in-law denies visitation to grandparents
If you are a grandparent in one of these situations, what are your rights?
Grandparents do have some rights to visitation but recent changes in Georgia law makes receiving legal visitation rights even harder. First, to get visitation rights, your grandchildren’s parents must have a “severed relationship” (meaning separated or divorced). You will be unable to get legal visitation rights if the parents are still married. Second, the court ultimately cares about the “best interest of the child” and will look at your situation from your grandchildren’s point of view.
You’re more likely to get visitation rights if you have a strong bond or connection between you and your grandchildren and if it would be detrimental or damaging for the child if they didn’t regularly see you. In rare cases, it may even be harmful to the grandchildren if you don’t visit them.
Some examples include:
- Your grandchildren spent every single summer with you and now the parent says the child can’t see you.
- You saw your grandchildren every day and they now show negative responses to your absence (such as bedwetting or problems in school).
- Your grandchildren express visible signs of being upset and need a counselor because of your absence.
How to Know if You Have Grandparent Visitation RightsHere are some of the visitation questions we’ll ask you about:
- How much contact have you had with your grandchildren?
- How recent was that contact?
- How old are your grandchildren?
- What are your grandchildren’s wishes?
- What is the nature of your bond, relationship, or contact?
- Is there any evidence of harm to your grandchildren from lack of contact?
Grandparent custody is the same thing as third-party custody—a common form of custody in which someone other than the biological parents have custody of the child. Third-party custody usually occurs when the child is clearly in a harmful situation such as living in an environment of abuse or neglect. To obtain custody as a grandparent, you must show a clear reason such as:
- The child has an unfit parent who is not caring. “Unfit” must mean major issues such as drugs, crime, or neglect.
- The parent has given up his or her role as a parent.
- A very strong bond or connection exists between you and the child.
- The child would be physically, medically, or emotionally harmed if returned to the parent.
- There is evidence of physical and psychological harm to the children from the parent.
After finding that the child would be harmed if the child was returned to the parents, the Court must determine that it is in the best interest of the child to be placed in the custody of grandparents.
A Caution to Parents
Parents also need to understand these laws and situations before turning over a child to relatives such as grandparents, even for something like an overseas military assignment. Remember:
- You may have had children young or gone through a crisis during which you gave up your parental authority to a grandparent. If you want your authority back, the legal process may be difficult.
- Who does the child feel is a parent? Your children will have a huge say during any legal process, especially if they are older.
- If you give guardianship or custody to a grandparent, there is a possibility you may not get it back. Be careful before agreeing to give guardianship or custody to a grandparent or any other third party.