Kunz v. Bailey
290 Ga. 361
| Ga. | 2012Background
- Appellants Robert and Royce Kunz are the paternal grandparents of a child born to Carrie Bailey and the Kunzes’ son.
- Douglas Bailey adopted the child in 2006 after the son terminated parental rights.
- Initially the Kunzes were allowed visitation; access later was denied.
- In 2009 the Kunzes petitioned for visitation under OCGA § 19-7-3 (b).
- OCGA § 19-7-3 (b) provides grandparents may file for visitation or intervene in actions involving custody, divorce, termination of parental rights, visitation, or adoption by a blood relative or stepparent, with a limiting provision that prevents original actions where parents are not separated and the child lives with both parents.
- The trial court denied the motion to dismiss; the Court of Appeals reversed, and the Supreme Court granted certiorari to resolve whether adoptive parents fall within § 19-7-3 (b)’s scope and whether the limiting language applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 'parents' in OCGA § 19-7-3 (b) includes adoptive parents. | Kunz argue that the term includes adoptive parents. | Bailey argues the term should be limited to natural parents. | Yes, includes adoptive parents. |
| Whether the limiting last sentence of § 19-7-3 (b) restricts original actions to when parents are separated. | The limiting language is not intended to bar adoptive parents in all cases. | Original actions are barred unless parents are separated and the child is not living with both parents. | Yes, the last sentence limits original actions when parents are not separated. |
| Whether the trial court erred by denying the defendants’ motion to dismiss on the visitation petition. | The statute permits an original action for visitation. | Adoption and continued living together of the parents negate the action. | The trial court erred; the Court of Appeals correctly affirmed dismissal. |
Key Cases Cited
- Brooks v. Parkerson, 265 Ga. 189 (1995) (constitutionally protected interest of parents to raise their children—statutory intrusion barred unless separated)
- SRB Investment Svcs., LLLP v. BB&T Co., 289 Ga. 1 (2011) (statutory interpretation cannot be judicially expanded beyond text)
- In the Interest of T. C. D., 281 Ga. App. 517 (2006) (statutory language cannot be added by judicial decree)
- Bailey v. Kunz, 307 Ga. App. 710 (2011) (Court of Appeals interpreted § 19-7-3 (b) to include adoptive parents)
- Lightfoot v. Hollins, 308 Ga. App. 538 (2011) (disapproved to the extent inconsistent with this opinion)