Rhodes v. Peacock , 142 Ga. App. 328 ( 1977 )

142 Ga. App. 328 (1977) 235 S.E.2d 762

RHODES et al.
v.
PEACOCK.

53868.

Court of Appeals of Georgia.

Submitted May 9, 1977. Decided May 18, 1977.

Douglas L. Breault, for appellants.

Elkins & Flournoy, James A. Elkins, Jr., for appellee.

BANKE, Judge.

The appellants, maternal grandparents of Brandi Lee Peacock, whose mother is deceased, petitioned the trial court for visitation rights. The appellee is the father of the minor child, and there is no question before any court concerning his right to custody of the child. The trial judge dismissed the appellants' complaint for failure to state a claim upon which relief can be granted, and they appeal that order to this court.

Prior to the enactment of Code Ann. § 74-112 (Ga. L. 1976, p. 247), the law of this state was that grandparents could not obtain orders giving them the right to visit their grandchildren. Jackson v. Martin, 225 Ga. 170 (2) (167 SE2d 135) (1969); Davis v. Davis, 212 Ga. 217 (91 SE2d 487) (1956). Code Ann. § 74-112, supra, which was enacted in 1976, provides: "Whenever any court in this state shall have before it any question concerning the custody of or guardianship of any minor child, the court may, in its discretion, grant reasonable visitation rights to the maternal and paternal grandparents of the child. Any court granting such rights may issue its necessary order to enforce the grant." Because the trial court did not have before it any question concerning the custody or guardianship of the minor child, Code Ann. § 74-112, supra, is inapplicable to the instant case. In George v. Sizemore, 238 Ga. 525 (1977), the trial court did have before it a question concerning the custody of the child. Thus, George v. Sizemore is distinguished from the case sub judice.

While the appellants contend Code Ann. § 74-112 (Ga. L. 1976, p. 247) should appropriately be called "The Grandparents' Bill of Rights," the Georgia General Assembly simply did not include the right for which they have petitioned. The inclusion of such alleged right remains vested in the General Assembly and not this court — irrespective of the views of some "Grandfather" judges.

Judgment affirmed. Quillian, P. J., and Shulman, J., concur.