I am the child's family member (grandparent or sibling). Can I get visitation?
Possibly. The law allows for a grandparent, great-grandparent or sibling (known in the law as a "family member") to file for visitation in certain circumstances.
First, any grandparent can file an original petition for visitation rights only if the child's parents are separated. If the parents of the minor child are not separated and the child is living with both parents, a grandparent cannot start his/her own case for visitation.1 A grandparent cannot file an original petition more than once in any two-year period and cannot file in any year in which another custody action has been filed concerning the child.2 (However, there may be an exception to this if one of the child's parents dies, is incapacitated, or is incarcerated.)3 If a parent wants to file to modify or dismiss the grandparent's visitation rights, such a petition also cannot be filed more than once in any two-year period.2
Second, any grandparent, great-grandparent or sibling can file to intervene in any case that is already in court involving:
- the issue of custody or visitation rights of the child in question;
- divorce of the parents or of a parent of the child;
- termination of the parental rights of either parent of the child; or
- an adoption in which the child has been adopted by the child's blood relative or by a step-parent.4
The judge can grant visitation rights to a family member (grandparent, great-grandparent, or sibling) if there is "clear and convincing evidence" that the visitation is in the child's best interests and that the health/welfare of the child would be harmed if the visitation is denied. If there is no substantial pre-existing relationship between the child the family member, the fact that the child would miss out on the opportunity to develop a relationship with that family member is not enough to be considered "harm" to the child. The judge can find that this "harm" is likely to occur if, prior to filing for visitation:
- 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 childcare 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.5
However, if one of the child's parents dies, is incapacitated, or is incarcerated, that parent's parent may only have to prove that visitation would be in the best interests of the child instead of proving one of the four factors listed above. Also, the limitation (explained below) on filing more than once in a two-year period may not apply.4 Please consult a lawyer if this is your situation. You can find legal referrals on our GA Finding a Lawyer page.
Note: Even if a judge does not award visitation to the family member, the judge can still order the parent to notify the family member of any musical concerts, graduations, recitals, sporting events, etc., that the family member can attend.
1 O.C.G.A. § 19-7-3(b)(1)(A),(b)(2)
2 O.C.G.A. § 19-7-3(c)(2)
3 O.C.G.A. § 19-7-3(d)
4 O.C.G.A. § 19-7-3(b)(1)(B)
5 O.C.G.A. § 19-7-3(c)(1)