Grandparent Rights: Extended Family Custody and Visitation

How can you get grandparent rights in Georgia? Can an extended family member take custody rights away from a parent? The short answer is yes, but it’s very difficult. Third party custody cases arise when a child’s family member brings a case against the child’s legal parent to obtain custody of the child.

Family Members That CAN Apply for “Grandparent Rights”

First, only certain family relationships can attempt to obtain custody of a child from a legal parent. In order to have legal “standing” (the right to bring a case) the Petitioner (party seeking custody) must be one of the following to the child:

• grandparent
• great-grandparent
• aunt
• uncle
• great aunt
• great uncle
• sibling

High Legal Burden for Extended Family Custody and Visitation

Second, you must meet a very high, two-step burden of proof to get grandparent rights. To explain this legal concept, let’s digress a bit to talk about the difference between a burden of proof and a legal standard.

Legalese: The Regular Custody Process

Regular custody cases follow this pattern:

1. The Rule: A Court awards custody of the child based upon the “best interests of the child standard.”
2. The Process: The parent seeking custody must prove that custody would serve the children’s best interests.
3. The Proof: The parent has to prove that it’s more likely than not that custody would be best for the children.  This proof threshold is called the “preponderance of the evidence.

Grandparent Rights and Family Custody Rights

We have a laundry list of factors a court can consider in determining the best interests of a child in a custody case. But, extended family members don’t get to start there. First, they have to get past the legal parent’s rights. Georgia law starts with a single bright-line rule: Children should be with their legal parents. This hurdle is called a “rebuttable presumption.”

To get past the rebuttable presumption, third party family members must prove by “clear and convincing evidence” that leaving custody of the child with the parent would be harmful to the child. That evidence must show that the child will suffer significant emotional or physical harm if left in the custody of the child’s parent.

Once third party petitioners prove by clear and convincing evidence that the child will likely suffer significant emotional or physical harm if left in the custody of the child’s parent, they must then meet the second step of their burden of proof. They must then demonstrate to the court, by a preponderance of the evidence, that awarding custody of the child to the petitioners would serve the child’s best interests.