The other day, a friend of mine called. She was worried about whether she, as a grandparent, had any visitation or custody rights to her grandchildren. In Georgia, grandparents do not automatically have visitation or custody rights. What I had to explain to her is that the only way that grandparents can get custody or visitation rights in Georgia is if you can show that the children’s parents are unfit.

A grandparent has a hard time doing that a lot of times because one of the children is their child. It would require filing an action in the court to establish visitation or custody rights for the grandparent. In that, you would have to certify that the parents of the child are unfit, unable to parent the child, and that it would be in the child’s best interest for visitation or custody to be established into the grandparent.

Now, oftentimes, where grandparents would have more of a right is if, let’s say, you were the paternal grandparent, meaning that your son is the father of this child. If your son passes away in a car accident, and unfortunately, your daughter-in-law is not going to allow you to visit the children anymore, then that’s an easier bar to cross. Oftentimes, my clients find emotionally, they don’t have to attack their child because their child has passed away. They find it easier to have litigation processed through the court system to get visitation established. Oftentimes, especially if there are facts where the daughter-in-law is withholding the child, not allowing telephone contact, not allowing holiday time or even present exchanges, then the judge will ultimately grant visitation to that grandparent.

Now, in that same scenario, if you wanted custody of your grandchildren, you would still have to attack that living parent to make sure that the judge understands what’s going on. You would still have the bar of saying that your daughter-in-law is unfit or unable to have custody of those – of that child or those children. The court may grant you custody based on whatever evidence comes out.

There has been recent case law that’s come out about grandparent visitation which makes the bar a lot higher, makes it a much tougher case. With the right facts and circumstances, grandparents can be successful in obtaining custody or visitation of their grandchildren.

I was meeting with a client prior to our trial the other day. A very important question arose about how the judge is going to determine what custody arrangements are set for these parties. In Georgia, any custody action has to be looked at under the lens of several factors that the statute actually recognizes for us and tells us what those are. It makes it fairly easy for us to walk through the judges’ evidence and make sure that we’re giving what they need to make that decision.

It’s a long list of factors. Anything from your relationship with your child, the bond that your child may have with you or the other parent, whether there are half or stepsiblings in the other residence, where maybe that child is really connected and has a great bond with a brother or sister in another household. That can be considered. Any prior history of alcohol, drugs, abuse, neglect, domestic violence even between two parents who may not be in the residence with the child but just that there may be domestic violence occurring, the judge wants to hear about those things as well and will make a decision based on those factors and circumstances that we’re going to outline for the court what’s in your child’s best interest.

Ultimately, if there’s a piece of evidence that is relevant and presented to the judge, he can consider that piece of evidence and make a determination and weight those factors any way he’d like. If for some reason, he’s maybe a grandparent, he’s going to say, well, these parents are going to ensure that the grandparents are involved in this child’s life. That’s very important to him. He may weight that factor more seriously than another judge may consider that.

It’s important to be represented by an attorney who knows the judge on the bench because, ultimately, those judges are going to decide these cases differently. They need to be presented differently. That’s one benefit I’ve had in our office involved is we have a lot of experience in front of a lot of different judges.

Being Denied Visitation

I was meeting with a client the other day who was very emotional because he was refused visitation under a prior custody order. Now, of course, my first question would always be, what were the facts and circumstances around the refusal of that visitation? Were there allegations of drug use or domestic violence in your home? Is there a new boyfriend or girlfriend that may be in somebody’s life that would create a refusal of visitation or maybe they were just a fight between you and your prior spouse or the child’s other parent and that led to the refusal of visitation?

If it was a refusal, was it for a couple of hours, a couple of days? Was it several weeks in a row that you were refused visitation? I think all of those factors are going to be important when you come see us that we’re going to need to know the answer to those questions.

In a case where you’ve missed a couple of weekends of visitation for no apparent reason or no safety concerns or anything like that, ultimately, we would file a motion for contempt against the other party telling the court that they’re not following the prior custody order. Our judges here, especially when they hear that their orders are not being followed, they’re going to enforce those one way or another. Oftentimes, with visitation, that means you would get makeup visits, maybe extra time during holiday or the summer to make sure that you get your visitation back.

If there were some safety concerns that arose or issues with drugs, or alcohol, or domestic violence, the judge is going to hear about that and want to know was that something that was accurate? Did that really happen? Was it just a rumor, an allegation with no basis? It would be very important that if there were those allegations that we could show to the court that those were or were not true, and if they weren’t true, why you should get your visitation times made up. Now, based on a refusal of visitation, a judge can also look to see whether maybe your visitation time needs to be adjusted depending on what those allegations would be.

It’s very important, especially when your visitation’s been refused, that you have an attorney that can look into those circumstances and explain to the court what happened, and also to arrange with the other side or to propose for the judge where the makeup visits may come in so that you get your time that you were awarded under the prior court order that you can get your time back with your child, and make sure that you get back on schedule, start getting your parenting time, and aren’t continuously being refused your time.