333 Ga. App. 659
Ga. Ct. App.2015Background
- Grandparents petition under OCGA § 19-7-3 for court-ordered visitation with their deceased daughter's minor child.
- Father moves to dismiss arguing lack of standing; trial court grants; grandparents appeal.
- Kunz v. Bailey interpreted § 19-7-3(b) to limit standing where parents are not separated and child lives with both; amended statute added § 19-7-3(d).
- 2012 amendment to the Grandparent Visitation Statute added § 19-7-3(d) allowing visitation where a parent dies, is incapacitated, or is incarcerated, subject to best interests.
- Trial court dismissed the original action, concluding grandparents lacked standing under § 19-7-3(b) due to the child being adopted by the stepmother; court relied on Kunz.
- Court reverses, holding § 19-7-3(d) authorizes visitation for grandparents where one parent is deceased or other qualifying condition exists, and the grandparents fall within § 19-7-3(d)’s scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do grandparents have standing to seek visitation under § 19-7-3 when not filing as an intervenor and when an adoption occurred? | Fielder argues amendment creates standing under § 19-7-3(d). | Johnson contends Kunz bars original actions where parents are not separated and child lives with both parents. | No; § 19-7-3(d) grants standing regardless of adoption if conditions apply. |
| Does § 19-7-3(d) apply when a parent dies and the grandchild is living with both biological and adoptive parents? | Grandparents rely on § 19-7-3(d) as controlling and expansive. | Trial court and Johnson argue § 19-7-3(d) is limited to single-parent scenarios. | § 19-7-3(d) applies; it authorizes visitation notwithstanding subsections (b) and (c). |
| Is Kunz controlling precedent for standing under the amended statute? | Kunz is superseded or distinguishable due to amendment. | Kunz remains persuasive on statutory language and limits. | Kunz does not control; § 19-7-3(d) supersedes to permit standing. |
Key Cases Cited
- Kunz v. Bailey, 290 Ga. 361 (2012) (statutory standing constrained by (b); adoption and living with both parents limit original actions)
- Brooks v. Parkerson, 265 Ga. 189 (1995) (constitutionally protected parental rights; intrusion requires compelling justification)
- Sheppard v. McCraney, 317 Ga. App. 91 (2012) (statutory construction and parental rights considerations in grandparent visitation)
- In the Interest of N. M., 316 Ga. App. 649 (2012) (statutory construction guidance and interpretation of related provisions)
- In the Interest of T. C. D., 281 Ga. App. 517 (2006) (statutory interpretation cited for construction principles)