Grandparents Rights to Joint Custody

Despite recent changes in the law intended to expand the legal rights of grandparents to see their grandchildren, the law remains firmly on the side of the parents of those grandchildren.

The most recent case that reaffirmed that unhappy legal status of grandparents came from the Georgia Supreme Court on June 29, 2015 where the court held that grandparents cannot be given joint legal custody in the place of a legally unfit parent because Georgia law only allows joint legal custody between the actual parents of the child.

In the case of Stone v. Stone, David and Sandra Stone were divorcing each other for the second time, as they had previously been in a marriage that ended in divorce.  In this, their second divorce order, the court found that the father was a fit parent, while the mother was an unfit parent.  The court then granted to the mother the potential for future visitation, but granted joint legal custody to the father and the maternal grandmother.  The father was to have sole custody of the child, and the grandmother was given actual visitation rights.

Georgia law allows for custody of a child to be given to a third party, but only where both legal parents of the child are unfit parents.  Among other things, O.C.G.A. § 19-9-3 controls the amount of discretion that a trial court may exert when determining custody for a minor child, as well as the discretion it has to order grandparent visitation.  These issues are not allowed to be determined by a jury under Georgia law.

While it is the express policy of the state to encourage that a child have continuing contact with his or her grandparents who have shown to act in the best interests of the child, showing that the grandparents meet this standard is not enough for a grandparent to be granted custody.  A third party may be granted custody only where that third party can show through clear and convincing evidence that the child will suffer physical or emotional harm if custody were awarded to the biological parent.

The court went on to state that awarding joint custody between a fit parent and a designated grandparent is not only not allowed under the statutory laws of Georgia, but would raise constitutional concerns.

While the Georgia legislature has tried to increase the rights of grandparents with recent legislation, it is a tough fight to win in court.  Before you hire someone who tells you what you want to hear, make sure you consult with an attorney that knows Georgia domestic family law.

The full opinion is available at the Georgia Supreme court’s website at:

“clear and convincing” standard established in Clark v. Wade, 273 Ga. 587 (2001)