S94A1451. BROOKS et al. v. PARKERSON.
S94A1451
Supreme Court of Georgia
DECIDED FEBRUARY 27, 1995.
(454 SE2d 769)
HUNT, Chief Justice.
Rountree & Souther, George M. Rountree, for appellant. John S. Myers, for appellee.
such health services as reasonably shall be required to maintain the child in good physical and mental health, and as reasonably shall be required to correct and ameliorate any dysfunction of mind or body . . . [Included therein are] those reasonable charges of professionals in generally recognized fields of health care . . . includ[ing], obviously, the reasonable cost of services reasonably required for the child‘s dental health, and the reasonable costs of providing corrective devices, such as eyeglasses, as reasonably shall be required by the child‘s optical needs.
...Stone v. Tillis, 258 Ga. 17 (365 SE2d 110) (1988). Judgment affirmed in part, reversed and remanded in part. All the Justices concur.
DECIDED FEBRUARY 27, 1995.
Rountree & Souther, George M. Rountree, for appellant. John S. Myers, for appellee.
S94A1451. BROOKS et al. v. PARKERSON. (454 SE2d 769)
HUNT, Chief Justice.
This appeal presents the issue of the constitutionality of Georgia‘s “Grandparent Visitation Statute,”
Parkerson, the child‘s maternal grandmother, filed a petition for visitation under
1. The Statute.
The Grandparent Visitation Statute,
2. Constitutionality of the Statute.
In recent years legislatures in all 50 states have enacted statutes giving grandparents visitation rights. See Comment, The Coming Of Age Of Grandparent Visitation Rights, 43 The American University L. Rev. 563, 564 (1994).3 A number of legal scholars, including the
(a) The Protected Interest.
The U. S. Supreme Court has long recognized a constitutionally protected interest of parents to raise their children without undue state interference. Meyer v. Nebraska, 262 U. S. 390, 399 (43 SC 625, 67 LE 1042) (1923) (state law prohibiting teaching in school of any modern language except English held unconstitutional. The liberty interest guaranteed by the Fourteenth Amendment includes freedom “to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children.“); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (45 SC 571, 69 LE 1070) (1925) (law prohibiting parents from sending children to private rather than public schools unconstitutional because it would “unreasonably interfere with the liberty of parents . . . to direct the upbringing and education of [their] children.“); Prince v. Massachusetts, 321 U. S. 158, 166 (64 SC 438, 88 LE 645) (1944) (child labor laws prohibiting female children under the age of 18 from selling magazines and periodicals constitutional notwithstanding that “the custody, care and nurture of the child reside first in the parents. . . . [I]t is in recognition of this that [our] decisions have respected the private realm of family life which the state cannot enter.“); Ginsberg v. New York, 390 U. S. 629 (88 SC 1274, 20 LE2d 195) (1968) (the Court recognized general parental authority over children but upheld the state law limiting the availability of sex materials to minors); Stanley v. Illinois, 405 U. S. 645, 651-652 (92 SC 1208, 31 LE2d 551) (1972) (holding unconstitutional the Illinois law declaring that on
Parents have comparable interests under our state constitutional protections of liberty and privacy rights. “The right to the custody and control of one‘s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances.” In re: Suggs, 249 Ga. 365, 367 (291 SE2d 233) (1982) (holding that clear and convincing evidence is necessary to support a finding of deprivation in order to remove a child from his or her parent); see also In re Jane Doe, 262 Ga. 389, 393 (2), n. 6 (418 SE2d 3) (1992); In re Baby Girl Eason, 257 Ga. 292, 297 (1) (358 SE2d 459) (1987); In re S. E. H., 180 Ga. App. 849, 851 (350 SE2d 833) (1986); In re L. H. R., 253 Ga. 439, 445 (321 SE2d 716) (1984) (“the law‘s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life‘s difficult decisions.” In holding that an infant‘s family may make the decision to terminate life-support systems without prior judicial approval, we recognized that “[t]he right of the parent to speak for the minor child is . . . imbedded in our tradition and common law. . . .” Id.). See also
(b) Permissible State Infringement.
Having determined the interest involved, we look now to the ex-
Likewise, following the analysis of the Tennessee Supreme Court in interpreting its state statutes and constitutions, we find that implicit in Georgia cases, statutory and constitutional law is that state interference with parental rights to custody and control of children is permissible only where the health or welfare of a child is threatened. See generally Hawk v. Hawk, supra at 580; see, e.g., In re: Suggs, supra (clear and convincing proof of deprivation is necessary before parental rights may be terminated); In re L. H. R., supra at 445;
(c) The Constitutionality of Georgia‘s Grandparent Visitation Statute.
However, even assuming grandparent visitation promotes the health and welfare of the child, the state may only impose that visitation over the parents’ objections on a showing that failing to do so would be harmful to the child.6 It is irrelevant, to this constitutional analysis, that it might, in many instances be “better” or “desirable” for a child to maintain contact with a grandparent. The statute in question is unconstitutional under both the state and federal constitutions because it does not clearly promote the health or welfare of the child and does not require a showing of harm before state interference is authorized. For the above and foregoing reasons, the trial court‘s denial of the parents’ motion to dismiss is reversed.
Judgment reversed. All the Justices concur, except Benham, P. J., and Hunstein, J., who dissent.
Both the majority and the dissent say much of Georgia‘s “Grandparent Visitation Statute,”
In sum, the dissent says that grandparents can be another layer of special people for children. I fully agree. The family requires the most delicate mixture of nature and convention, of human and divine, to subsist and thrive. Its base may be mere bodily reproduction, but its purpose is the formation and maintenance of civilized human beings. Grandparents can be important to the family mixture because children must receive knowledge of the things of the past as well as prescriptions for what ought to be in order to resist the philistinism of the present. Having found wisdom, learned patience, and journeyed in faith, many grandparents have much to give their grandchildren in the way of a vision of the world, as models of action, and may, as well, provide children with a very profound sense of connection with others.
However, as important as grandparents can be in the lives of their grandchildren, the relationship between parent and child is paramount. For this reason I cannot believe in either the constitutionality or the political correctness of any law that allows a court, using its own notions of what “special circumstances” are, to pierce the delicate, complex and sacred unity of parent and child against the wishes of fit parents and without a showing of absolute necessity. While I have no quarrel with governmental interference where a parent‘s conduct may injure a child emotionally or physically, interference on less than those grounds is contrary to our common law tradition of protecting the nuclear family as the foundation of society and leaving fit parents the exclusive right to determine what is in their children‘s best interest. Far from being outmoded, that tradition is critical today. In this indifferent, lackluster and frightened time, we need to protect the sanctity and shore up the security provided by our families more than at any other time I can think of.
The American family as an institution is vulnerable for many reasons, not the least of which are the weaknesses of its members who are, after all, only mortals. Implicit in the Western family as we know it, which generally consists of parents and their young children, are deep distresses that often accompany living in intimate, revealing relationships with minimum regulation and oversight from government or other entities. Parents can perpetuate many subtle as well as overt outrages against their children, from neglect to mayhem. When pa-
Even in so-called “good families,” the engagement of child with mother and father, and husband with wife, can be intense, causing disappointment and pain. Mothers and fathers often feel their children‘s misfortunes and failures keenly; their rejection by peers, their abuse at the hands of callous adults, their awkwardness and their miscalculations. There is often wounded pride and astonished unbelief when the bright promise of the baby fades into the ordinariness of the school child. In the family the young adult struggles to shake off the bonds of parental love that expresses itself in solicitude and supervision. And for the parent whose child has made the necessary leap to freedom, there is the pain of letting go, of turning back to the silent house, the empty bed, the abandoned books, dolls and baseball bats.7
Turn all of this over, however, and in the vast majority of homes you will also discover tender devotion, the deepest pride and the most exultant joy — all experienced in the relationship between parent and child. It does not matter whether our child is brilliant or deficient, beautiful or homely, perfect or deformed, good or bad — he or she is ours, and most parents are committed to their children lastingly. Whether we rear our children on the right side of the tracks or the wrong, whether we are dunderheaded in politics or forward-looking enough to please our adventurous offspring, whether we are able to provide them with the things they think they need or we are limited to providing them with the things we know they must have, they are ours and, absent abuse and neglect, parents and their children have the right to “remain together without the coercive interference of the awesome power of the state.” Duchesne v. Sugarman, 566 F2d 817, 825 (2nd Cir. 1977). Our law has always recognized that the relationship between parents and their children is the most mutually beneficial relationship possible, in an imperfect world, and in this country parents’ decisions concerning visitation with a grandparent or anyone else have always been dictated, if at all, by moral and religious forces rather than legal ones.
If the relationship of parent to child were a more superficial one — as well might be the case under any statute that would involuntarily relieve a couple of the care of their young in favor of others under
Between parent and child, there is no monster like separateness. It can grow even faster than children, shutting first the heart, then the home, then history. The rights that some grandparents may seek under the liberal rules of the statute invalidated today could separate fit parents from responsibility for and authority over their children, thereby undermining the privacy and primacy of the American family. The statute cannot be allowed to stand.
BENHAM, Presiding Justice, dissenting.
I respectfully dissent from the majority‘s sweeping pronouncement that
The judicial branch of this state has the constitutional power and duty to declare void legislative acts which violate the U. S. or Georgia Constitution; however, “the conflict between the act and the fundamental law must be clear and palpable before an act of a co-ordinate department of the government will be declared unconstitutional.
Instead of adhering to Georgia‘s principles of statutory interpretation when faced with a constitutional challenge, the majority simply follows the analysis of the Supreme Court of Tennessee in its decision in Hawk v. Hawk, 855 SW2d 573 (Tenn. 1993). The Tennessee court based its decision on the right to privacy it found in the Tennessee Constitution in 1992 (id. at 577), the determination that parental rights are a fundamental liberty interest under the Tennessee Constitution (id. at 579), “Tennessee‘s historically strong protection of parental rights” (id.), and the limitation of Tennessee‘s authority as parens patriae to interfere with parenting to situations wherein it was necessary to prevent serious harm to a child. Id. at 580.10 However, what may fit Tennessee does not necessarily fit Georgia.
A person in Georgia has a constitutionally protected right to privacy. In addition to the right of privacy found in the penumbrae of the Ninth and Fourteenth Amendments to the U. S. Constitution (Griswold v. Connecticut, 381 U. S. 479 (85 SC 1678, 14 LE2d 510) (1965)), the Georgia Constitution protects a person‘s right to privacy. Over 90 years ago, this court assured all persons in Georgia of a right to privacy guaranteed by the state constitutional provision that no person could be deprived of liberty without due process of law. Pavesich v. New England Life Ins. Co., 122 Ga. 190, 197 (50 SE 68) (1904). Parents in Georgia, as well as parents throughout the United
the family itself is not beyond regulation in the public interest . . . . Acting to guard the general interest in youth‘s well being, the state as parens patriae may restrict the parent‘s control . . . [T]he state has a wide range of power for limiting parental freedom and authority in things affecting the child‘s welfare . . . .
Prince v. Massachusetts, 321 U. S. 158, 166 (64 SC 438, 88 LE 645) (1944). “The well-being of its children is of course a subject within the State‘s constitutional power to regulate . . . .” Ginsberg v. New York, 390 U. S. 629, 639 (88 SC 1274, 20 LE2d 195) (1968). As parens patriae, the State “has a legitimate interest in protecting those individuals unable to protect themselves.” Blackburn v. Blackburn, 249 Ga. 689, 692, n. 5 (292 SE2d 821) (1982). “[T]he parens patriae must protect the helpless and the innocent. They are the wards of the court, the hope of the State, and the seed corn of the future.” Williams v. Crosby, 118 Ga. 296, 298 (45 SE 282) (1903). Acting as parens patriae, the government can require that children be educated, inoculated against disease, restrained when traveling in motor vehicles, forbidden employment under a certain age, protected from abuse, and required to be indoors during prescribed hours of the night. Thus, it is clear that the State may impose reasonable regulations that do not substantially interfere with the parents’ fundamental right. Zablocki v. Redhail, 434 U. S. 374, 386 (98 SC 673, 54 LE2d 618) (1978). A legislative action that interferes with the parents’ fundamental right must “directly and substantially” interfere with the parental right or “heavily burden” their liberty interest before the State‘s action will be subject to strict scrutiny. Lyng v. Castillo, 477 U. S. 635, 638 (106 SC 2727, 91 LE2d 527) (1986). Thus, the less rigorous standard of whether there is a “reasonable relationship to any end within the competency of the State” is applied when the interference is not direct and substantial and the liberty interest not heavily burdened. Meyer v. Nebraska, supra, 262 U. S. 390, 403.
Following Tennessee‘s lead, the majority maintains that the State‘s authority to assert itself as parens patriae “is permissible only where the health or welfare of a child is threatened.” Majority, p. 193. However, in Georgia, the courts have acted as parens patriae when
For decades, the courts of this state have recognized that the best interests of the child may often include contact with a grandparent, and have exercised judicial discretion to achieve that goal. In 1910, Judge Richard B. Russell pointed out that “[a widowed] father is not, as a matter of right, in all cases and under all circumstances entitled to the custody of his child,” even when he is a proper person to raise a child, because it is “the welfare of the little one” which is paramount. Evans v. Lane, 8 Ga. App. 826, 831 (70 SE 603) (1910). The court noted that “welfare” included “that peacefulness of mind and sweet content upon which its happiness depends,” and opined that the child
surrounded with every accessory . . . of luxurious wealth, might be far less happy than she would be in receiving one tender stroke of the grand[parent]‘s hand, or one loving look from the grand[parent]‘s heart.
Id. at 831. In Scott v. Scott, 154 Ga. 659 (115 SE 2) (1922), this court recognized the right of a trial court to exercise its discretion and award grandparent visitation. In addition, the General Assembly has expressly stated that Georgia has a policy “to encourage that a minor child has continuing contact with . . . grandparents who have shown the ability to act in the best interest of the child. . . .”
Other states have also noted that a court acts parens patriae when providing for grandparent visitation after finding it is in the best interest of the grandchild to do so. In rejecting a constitutional challenge to the Kansas statute authorizing court-ordered grandparent visitation, the Kansas Court of Appeals recognized the State‘s interest in protecting its children and assuring they receive proper care. The court concluded that “the parents’ rights are subordinate to the State‘s paren[s] patriae powers and must yield when adverse to the best interests of the child. [Cit.]” Spradling v. Harris, 778 P2d 365, 367 (Kan. App. 1989). In Sketo v. Brown, 559 S2d 381, 382 (Fla. App. 1990), the Florida Court of Appeals held that
[t]he state has a sufficiently compelling interest in the welfare of children that it can provide for the continuation of relations between children and their grandparents under reasonable terms and conditions so long as that is in the children‘s interest.
The Supreme Court of New Hampshire has found the “better view” to be that a court, as an instrumentality of the State, “may use its parens patriae power to decide whether the welfare of the child warrants court-ordered visitation with grandparents . . . .” Roberts v. Ward, 493 A2d 478, 481 (N.H. 1985). New York “in its role as parens patriae has determined that, under certain limited circumstances, grandparents should have continuing contacts with the child‘s development if it is in the child‘s best interest.” People ex rel. Sibley v. Sheppard, 429 NE2d 1049, 1052 (NY 1981). The Indiana Court of Appeals has concluded that Indiana‘s grandparent visitation statute “interferes with a parent‘s liberty interests only to observe its duty under the parens patriae doctrine and only upon a finding that it would be in the best interest of the child.” Bailey v. Menzie, 542 NE2d 1015, 1020 (Ind. App. 1989). See also R. T. v. J. E., 650 A2d 13 (N.J. Super. Ch. 1994) (upholding the New Jersey statute authorizing grandparent visitation if in the best interest of child against constitutional challenge); Herndon v. Tuhey, 857 SW2d 203 (Mo. 1993) (upholding the Missouri statute authorizing grandparent visitation if in child‘s best interest against constitutional challenge); King v. King, 828 SW2d 630 (Ky. 1992), cert. denied, U. S. (113 SC 378, 121 LE2d 289) (1992) (upholding the Kentucky statute authorizing grandparent visitation against constitutional challenge if visitation is in the best interest of the child); Deweese v. Crawford, 520 SW2d 522 (Tex. Civ. App. 1975) (rejecting an attack on the constitutionality of the Texas statute authorizing grandparent visitation). The Supreme Court of New Hampshire summarized the dilemma which each of these courts faced:
Parental autonomy is grounded in the assumption that natural parents raise their own children in nuclear families, consisting of a married couple and their children. . . . The realities of modern living, however, demonstrate that the validity of according almost absolute judicial deference to parental rights has become less compelling as the foundation upon which they are premised, the traditional nuclear family, has eroded . . . . More varied and complicated family situations arise as divorces, and decisions not to marry, result in single-
parent families; as remarriages create step-families; as some parents abandon their children; as others give them to temporary caretakers; and as still others are judged unfit to raise their own children. One of the frequent consequences, for children, of the decline of the traditional nuclear family is the formation of close personal attachments between them and adults outside of their immediate families. . . . It . . . [is] shortsighted indeed, for this court not to recognize the realities and complexities of modern family life, by holding today that a child has no rights, over the objection of a parent, to maintain a close extra-parental relationship. . . .
Roberts v. Ward, supra, 493 A2d 478, 481, citing Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives when the Premise of the Nuclear Family Has Failed, 70 Va. Law Rev. 879 (1984).
The Georgia Grandparent Visitation Statute confers standing upon grandparents to apply to a court for the privilege of visiting with their grandchildren. Sachs v. Walzer, 242 Ga. 742 (251 SE2d 302) (1978). It does not confer a substantive or absolute right of visitation, but simply establishes a procedural vehicle through which grandparents may ask the court to allow visitation. It does not presume the existence of a beneficial relationship between grandparents and grandchildren. See Hawk v. Hawk, supra, 855 SW2d at 581, where the Tennessee Supreme Court sought “to avoid the ‘unquestioning judicial assumption’ that grandparent-grandchild relationships always benefit children. . . .” Rather, it requires grandparents to establish “special circumstances which make such visitation rights necessary to the best interests of the child.”
Our statute is a legitimate exercise of the General Assembly‘s power to balance the competing interests of children, their parents, and their grandparents. The statute is an embodiment of the expressed policy of this state “to encourage that a minor child has continuing contact with . . . grandparents who have shown the ability to act in the best interest of the child. . . .”
For over 80 years the appellate courts of Georgia have recognized the authority of a trial court to exercise its discretion and provide for visitation between grandparents and grandchildren when it was in the best interest of the children involved. See Scott v. Scott, 154 Ga. 659, supra; and Evans v. Lane, 8 Ga. App. 826, supra. The majority now holds that the legislative act giving grandparents standing to ask for visitation and codifying the judicial practice of providing for such visitation when it was in the child‘s best interest is unconstitutional. “While the court may not agree with the wisdom of the statute, we are not authorized to second guess the legislature.” Celotex Corp. v. St. Joseph Hosp., 259 Ga. 108, 111 (376 SE2d 880) (1989) (Hunt, J., dissenting). As I cannot join my colleagues in second-guessing the legislature, I dissent from their holding that the Grandparent Visitation Statute is not constitutional.
I am authorized to state that Justice Hunstein joins this dissent.
DECIDED MARCH 17, 1995.
Sutton & McCreary, Timothy A. McCreary, for appellants. Lela S. Bridgers, Robert E. Flournoy III, for appellee.
S94A1539. RUSSELL v. THE STATE. S94A1536. JONES v. THE STATE. (455 SE2d 34)
FLETCHER, Justice.
A jury convicted Demetra Latrell Russell of malice murder in connection with the stabbing death of 17-year-old Nocera Tucker.