Ballweg v. Georgia Department of Human Services
336 Ga. App. 372
Ga. Ct. App.2016Background
- Albert Ballweg, paternal grandfather of two girls, filed a petition for permanent custody and/or visitation after the juvenile court terminated the parents’ rights and DHS obtained custody.
- The same juvenile court judge who presided over the termination proceedings (and who had prior contact with the children) heard Ballweg’s petition sitting by designation in superior court.
- At the custody hearing, evidence showed the children had severe emotional and behavioral problems, required long-term therapy, and remained under close adult supervision.
- Ballweg lived mostly in Tennessee in a travel trailer on a landowner’s property, had limited income (Social Security and small pension), and had previously cared for the children briefly but did not act when they were taken by the mother in 2011.
- The superior court denied Ballweg’s petition in full: it found DHS custody was in the children’s best interest and concluded Ballweg failed to meet OCGA § 19-7-3’s tests for grandparent visitation.
- On appeal, the Court of Appeals affirmed the custody ruling as supported by evidence but vacated the visitation ruling because the trial court applied the wrong legal standard.
Issues
| Issue | Ballweg's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether alleged ex parte communication between judge and children required recusal | Ballweg argued judge’s statement about children asking to be adopted showed an ex parte contact that tainted proceedings | DHS noted the judge presided over termination and Ballweg had knowingly waived venue; any contact was revealed and no timely recusal motion was made | Claim waived — Ballweg failed to timely move to recuse and show good cause, so issue not preserved |
| Whether trial court erred in denying Ballweg custody | Ballweg argued he should have custody as fit grandparent/caretaker | DHS argued children’s severe needs and Ballweg’s unstable living situation made DHS custody proper | Affirmed — trial court’s custody decision was supported by some evidence and not an abuse of discretion |
| Whether trial court applied correct legal standard for grandparent visitation | Ballweg argued visitation should be evaluated under "best interest of the child" (less stringent than OCGA § 19-7-3) | DHS argued § 19-7-3 applies and Ballweg failed its strict tests | Reversed in part — trial court applied OCGA § 19-7-3 (a statute for overriding parental rights), which is inapplicable to nonparents like DHS; visitation ruling vacated and remanded for proceedings under correct standard |
Key Cases Cited
- Stills v. Johnson, 272 Ga. 645 (standard: custody between nonparents decided by best interest of child)
- Smith v. Pearce, 334 Ga. App. 84 (trial-court deference in contested third-party custody; evidence-supported denial affirmed)
- Perrin v. Stansell, 243 Ga. App. 475 (OCGA § 19-7-3 applies to grandparents seeking visitation over parental objection; not applicable to third-party custodians)
- Mandt v. Lovell, 317 Ga. App. 168 (questions of law reviewed de novo)