A grandparent can be awarded custody of a grandchild in Georgia, but only by overcoming a presumption that the child belongs with a parent.
The Statute
OCGA 19-7-1(b.1) lets a court award custody to a third party in a dispute between the parents, or between a parent and a relative – a grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent. The statute builds in a thumb on the scale: “There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents.”
What It Takes to Rebut the Presumption
The statute says the presumption may be overcome by showing that custody to the third party is in the child’s best interest. The Georgia Supreme Court has read more into it than that. In Clark v. Wade, 273 Ga. 587 (2001), two sets of maternal grandparents fought custody battles with the children’s fathers. The Court upheld the statute by narrowing it, construing it “as requiring the third party to show by clear and convincing evidence that parental custody would harm the child in order to rebut the statutory presumption in favor of the parent.”
So best interests alone is not the test. A grandparent has to reach harm first.
You Do Not Need a Legitimation Order to Have Standing
In Reeves v. Hayes, 266 Ga. App. 297 (2004), paternal grandparents sought custody of a grandchild born after their son died. The trial court dismissed the petition because the son had never legitimated the child. The Court of Appeals reversed, holding that the grandparents’ right to bring a custody action turned on their son being a parent of the child, not on his having legitimated her.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!