Grandparent visitation rights expanded under new law

Statute is unlikely to affect case by Sneiderman grandparents, family law attorney says
By Kathleen Baydala Joyner

A new law could make it easier for grandparents to persuade judges to grant visitation rights with their grandchildren.

House Bill 1198, passed by the General Assembly in March and signed by the governor May 1, states that “while a parent’s decision regarding grandparent visitation shall be given deference by the court, the parent’s decision shall not be conclusive when failure to provide grandparent contact would result in emotional harm to the child.”

The law states that a judge “may presume that a child who is denied any contact with his or her grandparent or who is not provided some minimal opportunity for contact with his or her grandparent may suffer emotional injury that is harmful to such child’s health.”

Family law attorney Barry McGough said the new presumption is in direct opposition to the previous statute, which required a grandparent seeking visitation rights to prove that absence of visitation rights would harm the child.
Randall Kessler, who chairs the State Bar of Georgia’s Family Law Section, said the new law “is not drastic, but it gives more of a presumption that grandparents have rights.”What was implicit in any visitation case [prior to the new law] is, for the first time, explicit,” he added. Kessler wouldn’t comment on how the new law could affect a case he is litigating for Donald and Marilyn Sneiderman, the parents of Rusty Sneiderman, who was killed outside a Dunwoody day care in November 2010. The Sneidermans are fighting their son’s widow, Andrea Sneiderman, over visits to the couple’s daughter and son.

DeKalb County prosecutors and defense lawyers in the trial of Hemy Neuman, who in March was convicted of shooting Rusty Sneiderman, have suggested Andrea Sneiderman could have been involved in the crime. No charges have been filed against her.

In the visitation case, pending in Fulton County Superior Court, the Sneiderman grandparents allege Andrea Sneiderman has blocked their access to the grandchildren. Andrea Sneiderman’s attorneys have denied those claims and implied that her in-laws are speaking negatively of her to her children.

Attorneys for Andrea Sneiderman, Bruce Steinfeld and Doug Chalmers, declined to discuss how the new law would affect their case.

McGough, who isn’t involved in the matter, said he doubts the new law would be applied because the Sneiderman grandparents’ petition was filed before the new law was enacted. If a new law creates a substantive difference with the old law, he said, the new law generally can’t be applied retroactively.

McGough suggested that the new law makes a significant change in grandparent visitation law by shifting the burden to the custodial parent to prove that disallowing a child access to grandparents isn’t harmful. But that shift could make the law vulnerable to a constitutional challenge, said McGough, a partner at Warner, Bates & McGough.

Georgia’s first statute permitting grandparent visitation rights was enacted in 1976 and modified several times. The Georgia Supreme Court found it unconstitutional in 1995 because that law “didn’t require a showing that the absence of grandparent visitation would be harmful to the grandchild,” said McGough. The case was Brooks v. Parkerson, 265 Ga. 189.

The state high court’s decision was based on a U.S. Supreme Court decision that upheld the fundamental right of parents to raise their children without interference. The state high court required the state to justify why it would regulate what a parent can do, he said.

“It wasn’t enough to show that grandparent visitation would be in the best interest of the child, for the child’s happiness, McGough said. Grandparents “had to show that an absence would hurt.”

The new law “almost explicitly eliminates the need to require showing of harm,” he added.The new law applies to any case in which a grandparent asks a court to grant visitation with minor grandchildren after the grandparent’s son or daughter dies or is incapacitated, incarcerated or “otherwise unable to exercise his or her discretion regarding a decision to permit grandparent visitation.”

The bill’s primary sponsor, Rep. John Meadows, R-Calhoun, an insurance salesman, said he suggested the law because, “For several years, I’ve gotten calls from grandparents who weren’t allowed to see their grandchildren for whatever reasons.”
But Meadows said the law is a “helper” for the court system rather than a directive.

“The bill just gives the court some factors they could use,” he said. “I didn’t want to step on any judge’s toes. That’s why there are a lot of ‘mays’ and not ‘shalls'” in the new law.

One part of the new law that McGough said may be helpful for courts are criteria to consider when determining whether the health or welfare of a child would be harmed if denied visitation with grandparents.

The law states that courts must consider whether the minor child lived with the grandparent for six months or more; whether the grandparent provided financial support for the child’s basic needs for at least a year; whether there was an established pattern of regular visitation prior to one of the parents dying, becoming incapacitated or being locked up; or whether any circumstance exists indicating that emotional or physical harm would be reasonably likely to occur if visitation was not granted.
McGough said the outlined criteria could clarify what constitutes harm, which was a gray area in the previous statute.
But another major change included in the bill is a provision that would allow the court to require the custodial parent to notify a grandparent of every “performance of the minor child to which the public is admitted” such as a recital or school graduation—whether or not visitation is granted to the grandparent.

While this requirement may be viewed as a consolation prize to grandparents who want contact, a custodial parent who doesn’t obey it could face contempt charges, McGough said.

“In my experience doing family law for over 40 years, if there is something in a statute, a judge is going to find some way to use it,” he said.

While a judge could suggest something similar under the previous statute, such an idea is no longer subject to “just an incidental admonition,” he said. “It’s backed by the power of the state.”