Visitation

Evans v. Stowe: 181 Ga.App.489, 352 S.E.2D 811 (1987):  To issue an order to augment noncustodial parent’s visitation rights, no finding that a child suffered any material adverse effect from a change in circumstances must be made.

Schowe v. Amster, 263 Ga. 720 (1976): visitation privileges, with restrictions, are within the discretion of the trial court if it determines that the attempts by a parent to gain custody (illegally?) warrant the restrictions.

Brandenburg v. Brandenburg, 274 Ga. 183, 551 S.E.2d 721 (2001)

a.    Trial court abused its discretion in prohibiting husband from exercising his visitation rights in girlfriend's presence, absent any evidence that exposure to husband's live-in girlfriend, who husband had started seeing before he was divorced, would adversely affect the best interests of the children.

b.    Husband properly was required to contribute $200 per month to individual custodial accounts which were established for children before the divorce and which were created pursuant to the Georgia Transfers to Minors Act since use of the funds in the custodial accounts did not clearly extend beyond the age of 18 and was not restricted to post-minority college expenses.  O.C.G.A. § 44-5- 110 et seq.

Grandparents’ Rights / Visitation

1.     Notes on topic: O.C.G.A. § 19-7-3 gives grandparents a right to seek visitation where the parents are separated separated and the child is not living with both parents.

a.    Special circumstances & in best interests of child

b.    Only when:

i.     When a Court has before it a question concerning the guardianship of any minor child;

ii.    One parent dies;

iii.    One parent dies and the survivor remarries, regardless of whether the minor child is adopted by its step parent;

iv.   When a Court has terminated the parental rights of one of the natural parents of the minor child.

c.    Trial Court has discretion to deny visitation

2.     Smith v. Finstad 247 Ga. 603 (1981): legislative intent behind OCGA §19-7-3 was to give grandparents standing to seek visitation in a situation in which their own child had lost parental rights through death or termination.  The statute constitutes a specific exception to (former code Section §74-413) that the adopted child shall become a legal stranger to his former relatives for all purposes.

3.     Michell v. Erdmier 253 Ga. 335, 320 S.E.2d 163 (1984): O.C.G.A. §19-7-3 inapplicable when natural parents have voluntarily surrendered their parental rights.

4.     George v. Sizemore, 238 Ga. 525 (1977): Retroactive application of a statute concerning custody/visitation is proper to modify a Judgment obtained prior to its passage because the interest of the state in the welfare of minor children places the cases concerning their custody in a different category from other cases. 

Reasonable visitation rights are enforceable by contempt

1.     Prater v. Wheeler, 253 Ga. 649, 322 S.E.2d 892 (1984): (in Custody: Right of 14+ child to choose parent file)

a.    Although father of 14-year-old child might be found in contempt for withholding mother's visitation rights without obtaining an order modifying or altering such rights, despite allegations that the child did not want to visit his mother, order of contempt would be vacated to allow opportunity for review and modification of visitation rights on motion of either party or of the trial judge.  O.C.G.A. §§ 19-9-1(b), 19-9-3(b).

Modification: Visitation

1.     Issue: Whether to file a motion to modify visitation under the umbrella of the divorce action or a petition (a new action) for modification.

a.    The law, OCGA §19-9-1 and 19-9-3, allow either.  The motion does not require a showing of a change in condition.  The petition does.  Here, we have such a change, so factually either option is available.  The advantage of the motion is that our client will not have to pay a filing fee and we will not have to jump through the service of process hoops.  The disadvantage is that if we file a motion, this method of modification will not be available to him for a period of two years, should he want to modify visitation again (this time absent a change in condition