Vincent v. Vincent

333 Ga.App. 902

777 S.E.2d 729

VINCENT

v.VINCENT.

No. A15A1244.

Court of Appeals of Georgia.

Sept. 24, 2015.

Hatfield & Hatfield, John Mark Hatfield, Waycross, for Appellant.

Walters, Pujadas & Walker, Thomas Edward Pujadas, Ocilla, for Appellee.

Opinion

McMILLIAN, Judge.

Appellants Harvey Vincent and Annie Nell Vincent (collectively “grandparents”) filed a petition seeking, among other things, visitation rights to their minor grandchildren, who are their son's biological children. The children's mother, who had been granted a divorce from the father after he was incarcerated, opposed the petition. Following a hearing, the trial court denied the grandparents' request for visitation under the standard set out in OCGA § 19–7–3(c). The grandparents appeal, asserting, inter alia, that the trial court applied the wrong legal standard, made certain erroneous factual findings or failed to made certain findings, and failed to rule on their request for notification of the children's public performances under OCGA § 19–7–3(g). For the reasons that follow, we vacate the trial court's order and remand the case with direction.

1. We first consider whether the trial court applied the wrong legal standard in declining to award the grandparents visitation. Generally, grandparent visitation is governed by OCGA § 19–7–3 commonly referred to as the Grandparent Visitation Statute. As we have previously explained, the Grandparent Visitation Statute

was enacted to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild, where, as here, a child's parent objects. In this regard, the statute codified a standard for the trial courts to utilize in balancing the wishes of an alienated grandparent, the rights of the parents, and the interests of the child.

(Citation omitted.) Keith v. Callahan, 332 Ga.App. 291, 293(1), 772 S.E.2d 386 (2015).

In denying the grandparents' request for visitation, the trial court relied solely on subsection (c) of the statute, which in part provides that “the court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation.” OCGA § 19–7–3(c)(1). However, the legislature amended OCGA § 19–7–3 in 2012 to add subsection (d), which sets out a different standard when the parent of the minor child with whom visitation is sought is incapacitated, incarcerated or deceased, and the grandparent seeking visitation is the parent of such incarcerated, incapacitated or deceased parent. Ga. L. 2012, p. 860, § 1. Thus, under that section,

[n ]otwithstanding the provisions of subsections (b) and (c) of this Code section, if one of the parents of a minor child dies, is incapacitated, or is incarcerated, the court may award the parent of the deceased, incapacitated, or incarcerated parent of such minor child reasonable visitation to such child during his or her minority if the court in its discretion finds that such visitation would be in the best interests of the child. The custodial parent's judgment as to the best interests of the child regarding visitation shall be given deference by the court but shall not be conclusive.

(Emphasis supplied.) OCGA § 19–7–3(d). As we have recently explained, “[q]uite explicitly, the language italicized above eliminates the provisions of subsections (b) and (c) from impeding an award of reasonable visitation to individuals particularly designated by subsection (d).” Fielder v. Johnson, 333 Ga.App. 658, 773 S.E.2d 831 (2015).

Because the grandparents' son was incarcerated, the trial court should have applied the “best interests” standard set out in subsection (d) instead of the less favorable “harmed unless such visitation is granted” standard set out in subsection (c). See Beloate v. Peden, 328 Ga.App. 64, 67(1), 761 S.E.2d 487 (2014) (because the mother of the children was deceased, the “more pertinent standard governing” the maternal grandparent's visitation request is set forth in subsection (d) of OCGA § 19–7–3 ). Accordingly, the trial court's order must be vacated and the case must be remanded to allow the trial court to conduct further proceedings and enter a new order in accordance with the standard set forth in OCGA § 19–7–3(d).¹ Further, the parties shall have the right to file a notice of appeal within 30 days of the entry of any adverse final order.

2. The grandparents also argue that the trial court erred by assigning more weight to the opinion of the mother than was permissible. However, we need not decide this issue, which also must be revisited and a new ruling issued upon remand in accordance with OCGA § 19–7–3(d). Compare OCGA § 19–7–3(c)(3) with OCGA § 19–7–3(d).

3. The grandparents challenge certain factual findings and conclusions made by the trial court and also argue that the trial court failed to make certain findings necessary to support its conclusions. However, because we have vacated that order and directed the trial court to conduct further proceedings and enter a new order applying a different standard, we need not examine the prior order for factual error or omission.

4. Lastly, the grandparents argue that the trial court erred by failing to rule on their request for notification of the children's public performances, which may be granted under OCGA § 19–7–3(g), whether or not visitation is awarded to a grandparent. The record reflects that the...