Domestic Relations Hb 1198

• Jurisdiction: Georgia,United States
• Publication year: 2010
• Citation: Vol. 29 No. 1

Georgia State University Law Review

Volume 29 j 16

Issue 1 Fall 2012

4-3-2013

Domestic Relations HB 1198

Georgia State University Law Review

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Recommended Citation

Georgia State University Law Review (2013) "Domestic Relations HB 1198," Georgia State University Law Review: Vol. 29: Iss. 1, Article 16.

Available at: http://digitalarchive.gsu.edu/gsulr/vol29/iss1/16

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DOMESTIC RELATIONS

Parent and Child Relationship Generally: Amend Article 1 of Chapter 7 of Title 19 of the Official Code of Georgia Annotated, Relating to General Provisions for Parent and Child Relationships

Generally, so as to Modify Provision Relating to Grandparent Visitation Rights; Provide for an Opportunity to Seek Grandparents Visitation in Cases Where the Parent is Deceased, Incapacitated, or

Incarcerated or Otherwise Unable to Exercise His or Her Discretion Regarding a Decision to Permit Grandparent Visitation; Provide for Related Matters; Provide for an Effective Date; Repeal Conflicting Laws; and for Other Purposes

Code Sections: Bill Number: Act Number: Georgia Laws: Summary:

Effective Date:

O.C.G.A. § 19-7-3 (amended)

HB 1198

702

2012 Ga. Laws 860

The Act provides courts the authority to award grandparents reasonable visitation rights to their grandchildren when the child's parent is unable to exercise his or her own discretion regarding visitation because of death, incarceration, or incapacitation.

May 1, 2012

History

over the past century, demographic changes have impacted the composition of the American family. Divorce rates have increased, senior citizens live longer, society has become more mobile, and extended families are increasingly estranged.¹ while many children have two parents married to each other, other children are raised in single-parent households or by extended relatives.² with this change

1. Am. Bar Ass'n, Facts About Law and the Elderly 13 (1998); Anne Marie Jackson, The Coming of Age of Grandparent Visitation Rights, 43 Am. U. L. Rev. 563, 563-64 (1994); Herbert S. Klein, The Changing American Family, Hoover Digest No. 3 (2004), available at http://www.hoover.org/publications/hoover-digest/article/6798.

2. In 1995, 69% of children under the age of eighteen lived with two parents, 27% lived with one

2012] LEGISLATIVE REVIEW 321

in family composition, caretakers outside the nuclear family take on increased responsibilities to raise children who are not their own.³ Family law recognizes that biological parents are not the only people who contribute to a child's welfare. Siblings, extended relatives, and nonparent caretakers can also serve the child's best interest.⁴ In many cases, grandparents take an active role in their grandchildren's lives.⁵ Yet in some of those families, parents prevent the grandparents from contacting their grandchildren after the adults experience some sort of falling out. In turn, states recognized the importance of vesting legally enforceable visitation rights in people other than biological parents. All fifty states have statutes providing for grandparent visitation rights.⁶ While these laws do not automatically grant grandparent visitation, they give grandparents the opportunity to seek visitation rights from a court.⁷

At common law, Georgia courts decided all child custody issues by considering one of two interests: (1) parents' rights to control and maintain custody of the child; or (2) the child's best interest and welfare.⁸ In early disputes, courts used both standards, sometimes even in the same case, to answer questions of grandparent visitation.⁹ In 1976, the Georgia General Assembly provided legislative guidance by enacting the Grandparent Visitation Statute, Code section 19-7-3.¹⁰ The statute stated: "[w]henever any court in this State shall have before it any question concerning the custody of or guardianship of any minor child, the court may, in its discretion, grant reasonable visitation rights to the maternal and paternal

parent, and 4% lived with neither parent. U.S. Dep't of Commerce, Bureau of Census, Census Brief: Children with Single Parents—How They Fare 2 (1997), available at http://www.census.gov/prod/3797pubs/cb-9701.pdf.

3. Troxel v. Granville, 530 U.S. 57, 64 (2000).

4. Alessia Bell, Public and Private Child: Troxel v. Granville and the Constitutional Rights of Family Members, 36 Harv. C.R.-C.L. L. Rev. 225, 226 (2001).

5. Troxel, 530 U.S. at 64 (citing U.S. Dep't of Commerce, Bureau of Census, Current Population Reports, Marital Status and Living Arrangements: March 1998 (1998), showing "approximately 4 million children—or 5.6 percent of all children under age 18—lived in the household of their grandparents" in 1998).

6. Jackson, supra note 1, at 564.

7. Am. Bar Ass'n, supra note 1.

8. Cynthia F. Zebrowitz, Brooks v. Parkerson: To Grandmother's House We Go—The Visitation Rights of Grandparents in Georgia, 11 Ga. St. U. L. Rev. 779, 780 (1995).

9. 7d.; see also Scott v. Scott, 154 Ga. 659, 659, 115 S.E. 2, 3 (1922) (applying both the best interests standard and the parents' rights standard).

10. 1976 Ga. Laws 274.

grandparents of the child."¹¹ Though this Act contemplated visitation rights previously unavailable to grandparents, the statute's brief text left courts with little guidance on how to apply the law.¹²

The Georgia General Assembly subsequently amended Code section 19-7-3 in 1980, 1981, and 1986, and it completely rewrote the statute in 1988.¹³ The 1988 version defined "grandparent," and more significantly, granted any grandparent the right to seek visitation of a minor grandchild in three ways: (1) by filing an original action for visitation rights; (2) by intervening in certain existing actions, including those where the custody of a minor child is at issue; or (3) by proceeding when the child has been adopted by the child's blood relative.¹⁴ In a 1993 amendment, the General Assembly added adoption by a step-parent to the list of actions where grandparents had the right to intervene for visitation.¹⁵

In 1995, however, the Supreme Court of Georgia struck down Code section 19-7-3 as "unconstitutional under both the state and federal constitutions because it [did] not clearly promote the health or welfare of the child and [did] not require a showing of harm before state interference [was] authorized."¹⁶ In rendering its decision, the majority emphasized that government interference with the parental right to custody and control of one's child is only permissible under the most compelling of circumstances, when the child's health or welfare is threatened.¹⁷

The Georgia General Assembly responded to the court's decision by amending the Grandparents Visitation Statute in 1996,¹⁸ aiming to provide a constitutionally viable statute that recognized the child's best interest.¹⁹ The amended Code section 19-7-3 embodied

11. Id.

12. Zebrowitz, supra note 8, at 783-84. Because the Grandparent Visitation Statute did not specify which standard—best interests or parents' rights—should apply in determining grandparents' visitation, the statute simply left the determination to the discretion of the court. Id.; Spitz v. Holland and George v. Sizemore are two cases that demonstrate how discretion can lead to the use of inconsistent standards even by the same court. Spitz v. Holland, 243 Ga. 9, 10, 252 S.E.2d 406, 407-08 (1979); George v. Sizemore, 238 Ga. 525, 233 S.E.2d 779, 781-82 (1977).

13. 1980 Ga. Laws 936; 1981 Ga. Laws 1318; 1986 Ga. Laws 10; 1988 Ga. Laws 864.

14. 1988 Ga. Laws 864.

15. 1993 Ga. Laws 456.

16. Brooks v. Parkerson, 265 Ga. 189, 194, 454 S.E.2d 769, 774 (1995).

17. Id. at 191-94, 454 S.E.2d at 772-73.

18. 1996 Ga. Laws 1089 (codified at O.C.G.A. § 19-7-3 (1996)).

19. Kean Decarlo, Parent and Child Relationship Generally: Provide Requirements and Judicial

2012] LEGISLATIVE REVIEW 323

Georgia's recognition of the changing realities of the American family and acknowledged the importance of children having access to multiple generations of family members.²⁰ Courts must...