Brooks v. Parkerson

Hunt, Chief Justice.

This appeal presents the issue of the constitutionality of Georgia’s “Grandparent Visitation Statute,” OCGA § 19-7-3. We hold that the statute is unconstitutional under both our state and federal constitutions, and reverse the trial court’s order to the contrary.

Parkerson, the child’s maternal grandmother, filed a petition for visitation under OCGA § 19-7-3. The petition was opposed by both the child’s parents, Stacy and William Brooks, who filed a motion to dismiss, challenging the constitutionality of the statute. We granted the parents’ application to appeal from the trial court’s denial of that motion, and asked the parties to address the issues of the constitutionality of the statute and, assuming its constitutionality, the appropriate burden of proof in grandparent visitation cases.¹ Because we find the statute unconstitutional, we need not reach the second question.

1. The Statute.

The Grandparent Visitation Statute, OCGA § 19-7-3, enacted substantially in its present form in 1988,² grants any grandparent the right to seek visitation of a minor grandchild in three ways: by filing an original action for visitation rights, by intervening in certain existing actions including those where the custody of a minor child is in issue, or by proceeding where there has been an adoption in which the adopted child has been adopted by the child’s blood relative or a stepparent. OCGA § 19-7-3 (b). The statute further provides that “the court may grant any grandparent of the child reasonable visitation rights upon proof of special circumstances which make such visitation rights necessary to the best interests of the child.” OCGA § 19-7-3 (c).

2. Constitutionality of the Statute.

In recent years legislatures in all 50 states have enacted statutes giving grandparents visitation rights. See Comment, The Coming Of Age Of Grandparent Visitation Rights, 43 The American University L. Rev. 563, 564 (1994).³ A number of legal scholars, including the justices of the supreme courts of Tennessee, Kentucky and Missouri have debated both the advisability and constitutionality of these statutes.⁴ In examining the constitutionality of our state’s grandparent visitation statute, we examine first the interest which is constitutionally protected and, second the extent to which the state may infringe on that interest. Finally, we consider whether the statute is within the permissible scope of state infringement. In so doing, we are mindful of the rule that legislative enactments are presumptively constitutional. Luther v. State, 255 Ga. 706, 707 (342 SE2d 316) (1986).

(a) The Protected Interest.

The U. S. Supreme Court has long recognized a constitutionally protected interest of parents to raise their children without undue state interference. Meyer v. Nebraska, 262 U. S. 390, 399 (43 SC 625, 67 LE 1042) (1923) (state law prohibiting teaching in school of any modern language except English held unconstitutional. The liberty interest guaranteed by the Fourteenth Amendment includes freedom “to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children.”); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (45 SC 571, 69 LE 1070) (1925) (law prohibiting parents from sending children to private rather than public schools unconstitutional because it would “unreasonably interfere with the liberty of parents ... to direct the upbringing and education of [their] children.”); Prince v. Massachusetts, 321 U. S. 158, 166 (64 SC 438, 88 LE 645) (1944) (child labor laws prohibiting female children under the age of 18 from selling magazines and periodicals constitutional notwithstanding that “the custody, care and nurture of the child reside first in the parents. . . . [I]t is in recognition of this that [our] decisions have respected the private realm of family life which the state cannot enter.”); Ginsberg v. New York, 390 U. S. 629 (88 SC 1274, 20 LE2d 195) (1968) (the Court recognized general parental authority over children but upheld the state law limiting the availability of sex materials to minors); Stanley v. Illinois, 405 U. S. 645, 651-652 (92 SC 1208, 31 LE2d 551) (1972) (holding unconstitutional the Illinois law declaring that on death of the mother, children of unwed fathers become wards of the state. The Court noted that it had found protection of the family unit under the due process and equal protection clauses of the Fourteenth Amendment, and under the privacy aspects of the Ninth Amendment); Wisconsin v. Yoder, 406 U. S. 205, 235 (92 SC 1526, 32 LE2d 15) (1972) (exempting Amish from the state compulsory education law requiring children to attend school beyond the eighth grade); Santosky v. Kramer, 455 U. S. 745, 753 (102 SC 1388, 71 LE2d 599) (1982) (in determining the standard of proof necessary in termination of parental rights case, the Court noted its “historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. . . . The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.”)- Although the parents’ right to rear children without state interference is largely expressed as a “liberty” interest, the Supreme Court has also noted that that right derives from privacy rights inherent in the constitution. See Prince v. Massachusetts, supra, 321 U. S. at 166; Hawk v. Hawk, 855 SW2d 573, 578-579, n. 3 (Tenn. 1993).

Parents have comparable interests under our state constitutional protections of liberty and privacy rights. “The right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances.” In re: Suggs, 249 Ga. 365, 367 (291 SE2d 233) (1982) (holding that clear and convincing evidence is necessary to support a finding of deprivation in order to remove a child from his or her parent); see also In re Jane Doe, 262 Ga. 389, 393 (2), n. 6 (418 SE2d 3) (1992); In re Baby Girl Eason, 257 Ga. 292, 297 (1) (358 SE2d 459) (1987); In re S. E. H., 180 Ga. App. 849, 851 (350 SE2d 833) (1986); In re L. H. R., 253 Ga. 439, 445 (321 SE2d 716) (1984) (“ ‘the law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.’ ” In holding that an infant’s family may make the decision to terminate life-support systems without prior judicial approval, we recognized that “[t]he right of the parent to speak for the minor child is . . . imbedded in our tradition and common law. . . .” Id.). See also Art. I, Sec. I, Par. I, of the Constitution of the State of Georgia (“[N]o person shall be deprived of life, liberty or property except by due process of law”); Bendiburg v. Dempsey, 909 F2d 463, 470 (11th Cir. 1990).

(b) Permissible State Infringement.

Having determined the interest involved, we look now to the extent of permissible state infringement on that interest. The Supreme Court has made clear that state interference with a parent’s right to raise children is justifiable only where the state acts in its police power to protect the child’s health or welfare, and where parental decisions in the area would result in harm to the child. See generally Bean, 24 Journal of Family Law, supra, n. 3 at 407-413; Hawk v. Hawk, supra at 580-581; Yoder, supra, 406 U. S. at 230 (Amish children would not be harmed by receiving an Amish education rather than a public education); Pierce, 268 U. S. at 534 (parents’ decisions to send their children to private schools were “not inherently harmful.”); Meyer, supra, 262 U. S. at 402-403 (“proficiency in a foreign language ... is not injurious to the health, morals or understanding of the ordinary child”); compare Prince v. Massachusetts, 321 U. S. 158, 170, wherein the Supreme Court upheld the conviction of a parent who allowed her child to sell religious magazines, finding legitimate state interference designed to prevent “psychological or physical injury” to the child. (Emphasis supplied.)

Likewise, following the analysis of the Tennessee Supreme Court in interpreting its state statutes and constitutions, we find that implicit in Georgia cases, statutory and constitutional law is that state interference with parental rights to custody and control of children is permissible only where the health or welfare of a child is threatened. See generally Hawk v. Hawk, supra at 580; see, e.g., In re: Suggs, supra (clear and convincing proof of deprivation is necessary before parental rights may be terminated); In re L. H. R., supra at 445; OCGA § 15-11-81 (the trial court must find clear and convincing evidence of parental misconduct or inability first before considering whether the termination of parental rights is in the child’s best interest); OCGA § 19-9-3 (the harm from the termination of the relationship between the child’s parents requires the court to “look to and determine solely what is for the best interest of the child or children and what will best promote their welfare and happiness”); OCGA § 19-7-4 (the court may order appropriate measures “for the welfare of the child,” if a child is found “under circumstances of destitution and suffering, abandonment . . .”).⁵

(c) The Constitutionality of Georgia’s Grandparent Visitation Statute.

With the foregoing in mind, we find the statute in question falls short both in its apparent attempt to provide for a child’s welfare and in its failure to require a showing of harm before visitation can be ordered. First, while as noted above, the state may, in limited instances, interfere with parental decision-making to protect the health or welfare of children, there is insufficient evidence that supports the proposition that grandparents’ visitation with their grandchildren always promotes the children’s health or welfare. See Note, supra, n. 3, Columbia Law Rev. at pp. 123-125; Bohl, Brave New Statutes, supra, n. 3 at 294-298. But see Fernandez, supra, n. 2 at 109-110. While there are, to be sure, many instances where the grandparent-grandchild bond is beneficial to the child, we have found, and the parties cite, little evidence that this is most often the case. It has also been noted that even if such a bond exists and would benefit the child if maintained, the impact of a lawsuit to enforce maintenance of the bond over the parents’ objection can only have a deleterious effect on the child. Bohl, supra at 296. Note, Columbia Law Rev. at 124. In so saying, we recognize that there are many grandparents who have a deep and significant bond with their grandchildren, and that we have an explicit policy in this state to “encourage that a minor child has continuing contact with parents and grandparents.” OCGA § 19-9-3 (d).

However, even assuming grandparent visitation promotes the health and welfare of the child, the state may only impose that visitation over the parents’ objections on a showing that failing to do so would be harmful to the child.⁶ It is irrelevant, to this constitutional analysis, that it might, in many instances be “better” or “desirable” for a child to maintain contact with a grandparent. The statute in question is unconstitutional under both the state and federal constitutions because it does not clearly promote the health or welfare of the child and does not require a showing of harm before state interference is authorized. For the above and foregoing reasons, the trial court’s denial of the parents’ motion to dismiss is reversed.

Judgment reversed.

All the Justices concur, except Benham, P. J., and Hunstein, J., who dissent.

1 The trial court held the statute is constitutional and that grandparents have a burden of proving the appropriateness of visitation by clear and convincing evidence.

2 At common law grandparents had no legal right of visitation with their grandchildren over the objections of the parents. See Note, Grandparents’ Visitation Rights In Georgia, 29 Emory Law Journal 1083 (1980). The first Grandparents’ Visitation Statute was enacted in this state in 1976, allowing the trial court, in its discretion, to grant reasonable visitation rights to a grandparent whenever the court had before it a question concerning the custody or guardianship of a child. Ga. Code Ann. § 74-112 (1976) (Ga. L. 1976, p. 247, § 1). The statute was amended and expanded in 1980 to authorize the trial court to grant reasonable visitation to grandparents in an existing case where the guardianship of a minor child was in issue, or where one parent had died and the survivor remarried, or where the parental rights of one of the parents had been terminated. Grandparents have the right to intervene in an existing action, or to file an original pleading if the grandparent was the parent of the minor child’s deceased parent or the parent of the minor child’s parent whose parental rights had been terminated. Ga. L. 1980, pp. 936-937. See Smith v. Finstad, 247 Ga. 603 (277 SE2d 736) (1981) upholding the constitutionality of the 1980 statute against a challenge that the retroactive application of that statute was unconstitutional. The 1980 statute gave grandparents the right to initiate an original action for visitation under limited circumstances. For a history of grandparent visitation in Georgia through 1980, see Note, 29 Emory Law Journal 1083, supra. The current statute allows a grandparent to bring an action for visitation under any circumstances (this has been referred, in some instances, to an “open-ended” grandparent visitation statute, see Bohl, Brave New Statutes: Grandparent Visitation As Unconstitutional Invasions of Family Life and Invalid Exercises of State Power, 3 George Mason Univ. Civil Rights L. Journal 271, 289 (1992)), except that an original petition may not be filed more than once in any two-year period. OCGA § 19-7-3 (c).

3 For some of the reasons behind the proliferation of these statutes, see Comment, The Coming of Age of Grandparent Visitation Rights, 43 The American Univ. L. Rev. 563, fns. 3-7 (1994); Fernandez, Grandparent Access: A Model Statute, 6 Yale Law and Policy Rev. 109, 115-117 (1988). We also note that in 1983, the U. S. Congress passed a resolution calling for the adoption of a uniform state act on grandparent visitation rights. S. Con. Res. 40, 98th Cong. 1st. Sess. 129 Cong. Reg. 13, 487 (1983).

4 See generally Bohl, supra, n. 1; Fernandez, supra, n. 2; Note, The Constitutional Constraints on Grandparents’ Visitation Statutes, 86 Columbia L. Rev. 118 (1986); Bean, Grandparent Visitation: Can the Parent Refuse?, 24 Journal of Family Law 393 (1985-86); Zaharoff, Access to Children: Towards a Model Statute for Third Parties, 15 Family Law Quarterly 165 (1981); Hawk v. Hawk, 855 SW2d 573 (Tenn. 1993); (holding unconstitutional Tennessee’s grandparent visitation statute under the Tennessee constitution); Herndon v. Tuhey, 857 SW2d 203 (Mo. 1993) (upholding Missouri’s grandparent visitation statute); and King v. King, 828 SW2d 630 (Ky. 1992) (upholding Kentucky’s grandparent visitation statute).

5 Contrary to the position of the dissent, the “best interest of the child” standard does not come into play to permit interference with the custody and control of the child, over parental objection, unless and until there is a showing of harm to the child without that interference. To the extent Evans v. Lane, 8 Ga. App. 826, 831 (70 SE 603) (1910), cited by the dissent, stands for the proposition that a grandparent might be entitled to custody of the grandchild, rather than a fit parent because it is “the welfare of the little' one” which is paramount, that opinion has clearly been overruled by our opinion in Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982).

6 The dissent reasons that a less strenuous standard, the rational basis test, applies in determining the constitutionality of state interference under the Grandparent Statute. This is because, the dissent argues, the interference here is not “direct or substantial.” We cannot agree. “Allowing the government to force upon an unwilling family a third party, even when the third party happens to be a grandparent, is a significant intrusion into the integral family unit.” Herndon v. Tuhey, supra, n. 4 at 212 (Covington, J., dissenting). Moreover, this part of the dissent’s analysis of the Grandparents’ Visitation Statute begs the question. The statute is either constitutional or it is not. It cannot be constitutional, as the dissent argues, because there is only a “little” infringement on family autonomy. Rather, as we have noted, there is no constitutionally permissible infringement of parental rights to custody and control without a showing of harm to the child.