Brooks v. Parkerson

• Citation: 265 Ga. 189,454 S.E.2d 769
• Decision Date: 17 March 1995
• Docket Number: No. S94A1451,S94A1451
• Parties: , 63 USLW 2640 BROOKS et al. v. PARKERSON.
• Court: Supreme Court of Georgia

Page 769

454 S.E.2d 769

265 Ga. 189, 63 USLW 2640

BROOKS et al. v. PARKERSON.

No. S94A1451.

Supreme Court of Georgia.

March 17, 1995.

Timothy A. McCreary, Sutton & McCreary, P.C., Villa Rica, for Brooks et al.

Lela Smith Bridgers, Robert E. Flournoy, III, Marietta, for Parkerson.

Maxine Thomas Orr, Lawrenceville, Marion Brandenburg, Griffin, for amicus appellant.

Peggy J. Sullens, Lilburn, Mary Goodwin, Lawrenceville, H.W. (Sonny) Burmeister, President, Children's Rights Council of Georgia, Marietta, for other interested parties.

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 fifty 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 S.E.2d 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 S.Ct. 625, 626, 67 L.Ed. 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, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 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 S.Ct. 438, 442, 88 L.Ed. 645 (1944) (child labor laws prohibiting female children under the age of eighteen 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 S.Ct. 1274, 20 L.Ed.2d 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, 651-52, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 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 S.Ct. 1526, 1543, 32 L.Ed.2d 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 S.Ct. 1388, 1394, 71 L.Ed.2d 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, 64 S.Ct. at 442. Hawk v. Hawk, 855 S.W.2d 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 S.E.2d 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 S.E.2d 3 (1992); In re Baby Girl Eason, 257 Ga. 292, 297(1), 358 S.E.2d 459 (1987); In re S.E.H., 180 Ga.App. 849, 851, 350 S.E.2d 833 (1986); In re L.H.R., 253 Ga. 439, 445, 321 S.E.2d 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. 1, Para. 1, Sec. 1 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 F.2d 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, 92 S.Ct. at 1540 (Amish children would not be harmed by receiving an Amish education rather than a public education); Pierce, 268 U.S. at 534, 45 S.Ct. at 573 (parents' decisions to send their children to private schools were "not inherently harmful."); Meyer, supra, 262 U.S. at 402-403, 43 S.Ct. at 628 ("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, 64 S.Ct. 438, 444, 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, 253 Ga. at 445, 321 S.E.2d 716; 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...