The Lawletter Vol 35 No 10, July 8, 2011
Sandra Thomas, Senior Attorney, National Legal Research Group
Resolving yet another painful conflict between grandparents who want to visit their grandchildren and parents who object to such visitation, on February 3, 2011, the Court of Appeals of Georgia dismissed an action for grandparent visitation filed by the paternal grandparents of an eight-year-old boy. Bailey v. Kunz, 706 S.E.2d 98 (Ga. Ct. App. 2011). On May 17, 2011, the Georgia Supreme Court granted certiorari in the case.
The mother and the biological father had been divorced several months before the child was born in 2002. The mother subsequently married her present husband. In 2006, the biological father surrendered his parental rights, and the mother's husband adopted the child.
After a dispute arose over ongoing grandparent visitation, in October 2009 the parents of the biological father filed a petition for visitation. The mother and her husband moved to dismiss the petition. The trial court denied the motion; the appeals court reversed and dismissed the grandparents' petition for visitation.
The case revolves around interpretation of Georgia Code § 19-7-3. Subsection (a) of that section defines "grandparent" to mean "the parent of a parent of a minor child, the parent of a minor child's parent who has died, and the parent of a minor child's parent whose parental rights have been terminated." Ga. Code Ann. § 19-7-3(a) (emphasis added). Under this definition, the parents of the biological father clearly remain the grandparents of the minor child.
Section 19-7-3 then states the following, as it is relevant to this decision:
(b) Except as otherwise provided in this subsection, any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child, . . . or whenever there has been an adoption in which the adopted child has been adopted by the child's blood relative or by a stepparent, notwithstanding the provisions of Code Section 19-8-19. This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both of the parents.
Id. § 19-7-3(b) (emphasis added).
Georgia Code § 19-8-19, referred to in the above-quoted section, provides that an adopted child becomes "a stranger to his former relatives" as a result of the adoption. The definition of "grandparent" in § 19-7-3 is a clear exception to that general rule.
The conflict comes between the beginning of subsection (b), which authorizes a petition for visitation to be filed by the grandparents, and the last sentence of subsection (b), which takes away that authorization "where the parents of the minor child are not separated and the child is living with both of the parents."
The mother and the adoptive father argued that although "parent" is not defined in § 19-7-3(b), the definition of "parent" contained in Georgia Code § 19-8-1(8) includes a "legal father"; "legal father" is defined in subsection (6) to include "a male who . . . [h]as legally adopted a child," id. § 19-8-1(6). The mother and the adoptive father argued that they were therefore the "parents" of the minor child who were living together and with the child and that the petition of the grandparents should not have been allowed.
The court of appeals agreed with the mother and the adoptive father. It will be interesting to see what the Georgia Supreme Court does with the case.
