Divorce/Custody

It is the public policy of the State of Georgia to encourage that a minor child have continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child. Grandparents have a legally recognized interest in the welfare of their grandchildren.

Visitation

Any grandparent has the right to file an original action for visitation rights to a minor child except when the parents are not separated and the child is living with both parents, and any family member - grandparent, great-grandparent, or sibling - has the right to intervene in and seek visitation rights in any case concerning custody, a divorce of the parents, a termination of parental rights of either parent, visitation rights, or where there has been an adoption by the child's blood relatives or by a stepparent.

The court may grant any family member reasonable visitation rights if the court finds by clear and convincing evidence that the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation. The granting of visitation rights to a family member is purely within the discretion of the trial court.

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 original action or intervention, any of the following has occurred:

• the minor child resided with the family member for six months or more;

• the family member 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 family member with the child; or

• any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.

Custody Upon the Death of a Parent

Georgia law addresses the issue of child custody in the event one parent dies while his or her child is still a minor. Generally, upon the death of one parent, the surviving parent is entitled to custody of the child. However, a court may, upon proper petition, grant custody or visitation rights to a grandparent if the best interests of the child or children involved would benefit from this change of custody.

It is important to understand that although Georgia law does recognize that a child’s relationship with his or her grandparents is important, the law presumes that a child’s parents are in the best position to retain custody of a minor child unless a grandparent makes a showing to the contrary. Georgia law is specific that a court must find that granting a child’s grandparents custody of that child or visitation rights regarding that child will serve the child’s best interests.

The trial court must make specific written findings of fact in support of its rulings, and this would include 1) whether the health of the grandchild would be harmed unless visitation is granted to the grandparent and 2) whether the best interest of the grandchild would be served by such visitation by clear and convincing evidence.

Custody

Georgia law does provide a method for third parties to petition the court for custody of minor children.  Georgia law puts third parties seeking custody into two different groups, specified family members and non-specified third parties.  These groups are important because the court requires different burdens of proof from each group to obtain custody of the child or children.

Specified Family Members

The following specified family members - grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent - may seek custody of minor children in any action involving the custody of the child or children or may file an original action.

Parents or any other person having custody may lose custody if the court determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. 

Any custody contest between the parents and a specified family member is based on the best interest of the child standard, which requires the family member by clear and convincing evidence to show that (1) parental custody would harm the child to rebut the statutory presumptions in favor of the parent, and once these presumption are overcome, (2) the award to the third party will best promote the child's health, welfare, and happiness.

A court cannot award joint custody to a parent and a grandparent.

Non-specified Third Parties

Custody dispute between a parent and a third party not specified by the statute require a different burden of proof.

In a custody contest between a parent and a non-specified third party, Georgia law has finally settled on the parental rights and fitness doctrine. In summary, the parental rights and fitness doctrine are as follows:

(1) In an initial custody contest between a parent and a third party (whether the third party is being awarded custody in a divorce case, in a child custody suit by a third party against the parent), or in a dependency action the parental rights and fitness doctrine applies, which means that the parent is entitled to custody unless it is shown by clear and convincing evidence that such parent is unfit or has lost the right to custody under certain conditions prescribed by statute The best interest of the child doctrine does not apply.

(2) Where a third party has been awarded custody previously, in a subsequent modification proceeding a parent may obtain custody by showing a change of condition affecting the welfare of the child. In such a situation, once the required change of condition has been shown by reasonable evidence, the best interest of the child doctrine would apply.

In the rare situation where both parents are unfit to have custody of the child and multiple third parties have sought custody of the minor child, then only the best interest of the child doctrine would apply.