Lead Opinion
This appeal presents the issue of the constitutionality of Georgia’s “Grandparent Visitation Statute,” OCGA § 19-7-3. We hold that the statute is unconstitutional under both our state and federal constitutions, and reverse the trial court’s order to the contrary.
Parkerson, the child’s maternal grandmother, filed a petition for visitation under OCGA § 19-7-3. The petition was opposed by both the child’s parents, Stacy and William Brooks, who filed a motion to dismiss, challenging the constitutionality of the statute. We granted the parents’ application to appeal from the trial court’s denial of that motion, and asked the parties to address the issues of the constitu
1. The Statute.
The Grandparent Visitation Statute, OCGA § 19-7-3, enacted substantially in its present form in 1988,
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).
(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,
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,
(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; OCGA § 15-11-81 (the trial court must find clear and convincing evidence of parental misconduct or inability first before considering whether the termination of parental rights is in the child’s best interest); OCGA § 19-9-3 (the harm from the termination of the relationship between the child’s parents requires the court to “look to and determine solely what is for the best interest of the child or children and what will best promote their welfare and happiness”); OCGA § 19-7-4 (the court may order appropriate measures “for the welfare of the child,” if a child is found “under circumstances of destitution and suffering, abandonment . . .”).
(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.
Judgment reversed.
Notes
The trial court held the statute is constitutional and that grandparents have a burden of proving the appropriateness of visitation by clear and convincing evidence.
At common law grandparents had no legal right of visitation with their grandchildren over the objections of the parents. See Note, Grandparents’ Visitation Rights In Georgia, 29 Emory Law Journal 1083 (1980). The first Grandparents’ Visitation Statute was enacted in this state in 1976, allowing the trial court, in its discretion, to grant reasonable visitation rights to a grandparent whenever the court had before it a question concerning the custody or guardianship of a child. Ga. Code Ann. § 74-112 (1976) (Ga. L. 1976, p. 247, § 1). The statute was amended and expanded in 1980 to authorize the trial court to grant reasonable visitation to grandparents in an existing case where the guardianship of a minor child was in issue, or where one parent had died and the survivor remarried, or where the parental rights of one of the parents had been terminated. Grandparents have the right to intervene in an existing action, or to file an original pleading if the grandparent was the parent of the minor child’s deceased parent or the parent of the minor child’s parent whose parental rights had been terminated. Ga. L. 1980, pp. 936-937. See Smith v. Finstad,
For some of the reasons behind the proliferation of these statutes, see Comment, The Coming of Age of Grandparent Visitation Rights, 43 The American Univ. L. Rev. 563, fns. 3-
See generally Bohl, supra, n. 1; Fernandez, supra, n. 2; Note, The Constitutional Constraints on Grandparents’ Visitation Statutes, 86 Columbia L. Rev. 118 (1986); Bean, Grandparent Visitation: Can the Parent Refuse?, 24 Journal of Family Law 393 (1985-86); Zaharoff, Access to Children: Towards a Model Statute for Third Parties, 15 Family Law Quarterly 165 (1981); Hawk v. Hawk,
Contrary to the position of the dissent, the “best interest of the child” standard does not come into play to permit interference with the custody and control of the child, over parental objection, unless and until there is a showing of harm to the child without that interference. To the extent Evans v. Lane,
The dissent reasons that a less strenuous standard, the rational basis test, applies in determining the constitutionality of state interference under the Grandparent Statute. This is because, the dissent argues, the interference here is not “direct or substantial.” We cannot agree. “Allowing the government to force upon an unwilling family a third party, even when the third party happens to be a grandparent, is a significant intrusion into the integral family unit.” Herndon v. Tuhey, supra, n. 4 at 212 (Covington, J., dissenting). Moreover, this part of the dissent’s analysis of the Grandparents’ Visitation Statute begs the question. The statute is either constitutional or it is not. It cannot be constitutional, as the dissent argues, because there is only a “little” infringement on family autonomy. Rather, as we have noted, there is no constitutionally permissible infringement of parental rights to custody and control without a showing of harm to the child.
Concurrence Opinion
concurring.
Both the majority and the dissent say much of Georgia’s “Grandparent Visitation Statute,” OCGA § 19-7-3, that today we declare unconstitutional. The statute makes the judicial process available for grandparents to use to require their children to provide them visitation rights with their grandchildren upon a showing of “special circumstances which make such visitation rights necessary to the best interest of the child.” OCGA § 19-7-3 (c).
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.
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.
See generally Cox, “Marriage and the Family” Readings on the Psychology of Women (Harper & Row, 1972).
Dissenting Opinion
dissenting.
I respectfully dissent from the majority’s sweeping pronouncement that OCGA § 19-7-3, Georgia’s “Grandparent Visitation Statute,”
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,
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,
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,
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,
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,
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,
[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,
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-*202 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,
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,
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. . . .” OCGA § 19-9-3 (d). The limited infringement upon parental rights by the Grandparent Visitation Statute is not of the magnitude of the infringement of parental rights that was involved in In re: Suggs
rary visitation when that is found to be in the child’s best interest.
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,
I am authorized to state that Justice Hunstein joins this dissent.
The statute, as pertinent to the facts of the case at bar, states:
(b) Any grandparent shall have the right to file an original action for visitation rights to a minor child ....
(c) Upon the filing of an original action . . . under subsection (b) of this Code section, the court may grant any grandparent of the child reasonable visitation rights upon proof of special circumstances which make such visitation rights necessary to the best interests of the child. There shall be no presumption in favor of visitation by any grandparent; and the court shall have discretion to deny such visitation rights. . . .
No state has declared a grandparent visitation statute violative of the U. S. Constitution. Tennessee, the only other state to find its grandparent visitation statute unconstitutional, based its holding on the Tennessee Constitution alone. Hawk v. Hawk,
The Tennessee decision was expressly limited to a determination of the constitutionality of Tennessee’s grandparent visitation statute “as it applies to the decision of these'married parents to deny the paternal grandparents visitation with their grandchildren.” Id. at 575.
When applied to married parents who have maintained continuous custody of their children and have acted as fit parents, [court-ordered grandparent visitation under the statute] constitutes an unconstitutional invasion of privacy rights under the Tennessee Constitution.
Id. at 582. The majority does not so limit its condemnation of the Georgia statute. In addition, I wish to note that, in 1993, a trial court ruled that OCGA § 19-7-3 (b) was unconstitutional insofar as it authorized court-ordered grandparent visitation after the grandchild had been adopted by a blood relative. The trial court determined that the visitation statute controverted the adoption statute and constituted an unreasonable intrusion upon the adoptive parents’ child-rearing autonomy. Massey v. Robinson, Civ. Action No. 93-A-02922-2, Superior Court of Gwinnett County (Stark, J.). This Court affirmed that decision without opinion, pursuant to Rule 59 of the Rules of this court. 263 Ga. XXVII.
In Harper v. Ballensinger,
The majority also cites In re L. H. R.,