Legalese — New Grandparent Visitation Law

Not too long ago, I wrote a general column about the new laws that went into effect on July 1 of 2022 in Georgia.  I mentioned how some of them were very targeted and would only affect a limited number of people.  Some are more broad, sweeping changes that are more likely to affect the lives of every-day Georgians.

One of those more broad laws is the change to grandparent visitation laws.  Senate Bill 576, sponsored by Senator Strickland of the 17th District, doesn’t so much change as clarify the grandparent visitation laws in Georgia.  Prior to these changes, the law was fairly broad, and said that the court should consider whether or not visitation was in the best interest of the child, and whether or not failure to have that visitation would be harmful to the child. 

Needless to say, that non-specific standard led to a wild variety of results that were largely unappealable.  When a decision is left to the discretion of a judge, and the decision is based on something so ill-defined and personal as ‘best interest’ and ‘emotional harm’ it is almost never a legal error that an appellate court will overturn. 

Let’s take a step back for a moment.  For a grandparent visitation case to be filed in the first place, there has to be something going south in the family to begin with.  Imagine how troubled the family must be for a parent to sue his or her own child in order to get the right to see the grandchildren.  There has to be a real clash in family values, or someone in jail, or someone who has died, or someone who is hospitalized long term, as well as a clash of the in-laws for that circumstance to occur.  Kind of by definition, if those circumstances are in place, the children involved have troubles.  Maybe the grandparents are the source of the problem.  Maybe they aren’t.

Generally speaking, the courts do –and should—defer to the parents in making parenting decisions.  Parents have a fundamental right to decide how their children are raised.  Whether or not I or you agree with those decisions, they aren’t ours to make.  However, those rights are not iron-clad – when the parents’ decisions harm the children, the parents’ rights have to be weighed against the children’s rights to be free from harm.

So.  Circling back to SB 576, this new law attempts to define ‘best interest’ and ‘harm’ by listing the types of things a court should consider in making those decisions.  The court now has to find by ‘clear and convincing evidence’ that the health and welfare of the child will be harmed if visitation is not granted and that the visitation is in the child’s best interest.  “The mere absence of an opportunity for a child to develop a relationship with a grandparent 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 grandparent.”  In other words, if the child and grandparent didn’t already have a real relationship, this law doesn’t exist to create one.

The law goes on to say that in making that decision, “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 death, incapacitation, or incarceration of the child’s parent: (A) The minor child resided with the grandparent for six months or more; (B) The grandparent 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 grandparent 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.”

If those circumstances exist, it creates a ‘rebuttable presumption’ that visitation should be granted.  A ‘rebuttable presumption’ is when the court can assume that visitation is a good idea, and it is up to the person saying it isn’t to prove otherwise. 

As with all custody and visitation cases, parental, etc., consider this: the more people who love a child, however imperfectly, the better.  Usually, it’s not a good idea to let your own personal grudges get in the way of allowing your child to experience the love and affection of relatives.  If I only had relationships with the people I didn’t have problems with, I wouldn’t have relationships with many people.  Think to yourself: yes, you have problems with your Mom or your Mother in Law.  But what harm is a two-hour dinner with your son actually going to do?  If she is a drug addict who is likely to be under the influence and physically harm your child, by all means withhold unsupervised visitation.  But if she’s just a person whose politics or religion you disagree with or someone you find unpleasant?  An age-appropriate conversation with your child about your own values will likely be a decent remedy.

Just my two cents.     

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.

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