Barnhill v. Alford

• Docket Number: S22A1075
• Decision Date: 20 December 2022
• Citation: 315 Ga. 304,882 S.E.2d 245
• Parties: BARNHILL et al. v. ALFORD.
• Court: Georgia Supreme Court

315 Ga. 304

882 S.E.2d 245

BARNHILL et al.

v.ALFORD.

S22A1075

Supreme Court of Georgia.

Decided: December 20, 2022

David Neil Marple, Sana R. Rupani, Marple Rubin Family Law, LLC, 400 Galleria Parkway SE, Suite 1940, Atlanta, Georgia 30339, for Appellant.

David S. DeLugas, National Association of Parents, Inc. d/b/a Parentsusa, P.O. Box 680755, Marietta, Georgia 30068-0013, for Amicus Appellant.

Melissa Davis Strickland, Buckhead Family Law, One Buckhead Plaza, 3060 Peachtree Road NW, Suite 1470, Atlanta, Georgia 30305, Barry Phillip Schwarz, Barry Phillip Schwarz, LLC, 3621 Vinings Slope, Suite 4300, Atlanta, Georgia 30339, Malone Williams Allen, Buckhead Family Law, 3060 Peachtree Road NW, Suite 1470, Atlanta, Georgia 30326, for Appellee.

Lagrua, Justice.

In this appeal, we have been asked to decide whether a grandmother's action for visitation rights to her biological granddaughter (the minor child of her deceased daughter) under OCGA § 19-7-3 —commonly known as the grandparent visitation statute—was precluded by the adoption of the child by her stepmother, and whether certain paragraphs of the grandparent visitation statute are unconstitutional, among other issues. For the reasons that follow, we conclude that (1) the grandmother was authorized to pursue an action for visitation rights to her granddaughter despite the adoption, and (2) with respect to the constitutional challenges, this Court needs only to consider the constitutionality of one of the three subsections at issue—which we hold to be constitutional. Accordingly, we affirm the trial court's rulings.

1. Facts

The minor child at issue (the "Child") was born out of wedlock to Lisa Hush ("Hush") in 2013. In 2014, Appellant Michael Barnhill ("Barnhill") filed a paternity action in the Superior Court of Cherokee County, seeking to establish his paternity as the biological father of the Child under OCGA § 19-7-43.¹ Legitimation, custody, visitation, and child support were then established by the court with respect to the Child, and Hush was designated as the primary physical custodian of the Child.²

From the time of the Child's birth in 2013, Hush and the Child lived with Appellee Cathy A. Alford ("Alford")—Hush's biological mother and the Child's biological grandmother—in Alford's home, and Alford assisted Hush in providing for the needs of the Child. Hush passed away on March 10, 2018, and following her death, the Child went to live with Barnhill and his wife, Appellant Katheryn A. Barnhill ("Katheryn").

Two months later, on May 22, 2018, Alford filed the underlying petition for grandparent visitation, seeking visitation rights to the Child pursuant to OCGA § 19-7-3.³ In Alford's petition, she alleged that, after Hush passed away and Barnhill took custody of the Child, Barnhill allowed Alford only "limited and sporadic visitation" with the Child—despite the fact that the Child lived with Alford in her home for the "entire course of [the Child's] life"—and required any visits between Alford and the Child to be supervised by Barnhill and/or Katheryn. Several months after Alford initiated the grandparent visitation action, Katheryn filed a petition for adoption of the Child, which was finalized on February 11, 2019, without providing notice to Alford or the trial court.⁴

In October 2019, Barnhill moved to dismiss Alford's petition for grandparent visitation, arguing that Katheryn's adoption severed all legal ties between Alford and the Child under OCGA § 19-8-19⁵ and that Alford had "no standing" to prosecute her action for grandparent visitation under OCGA § 19-7-3 (b) (2).⁶ Barnhill also moved to dismiss Alford's petition on the theory that the petition was prematurely filed in violation of OCGA § 19-7-3 (c) (2)⁷ because another custody action between Hush and Barnhill was pending. Following a hearing on the motion to dismiss in December 2019, the trial court denied Barnhill's motion.

The trial court scheduled a final hearing on Alford's petition for grandparent visitation on March 16, 2021. One week before the scheduled hearing, the Barnhills filed a "Motion to Declare OCGA § 19-7-3 (c) (1), (c) (3), and (c) (5) Unconstitutional."

In their motion, the Barnhills asserted, among other claims, that OCGA § 19-7-3 (c) (1), (c) (3), and (c) (5) are unconstitutional because these paragraphs (1) fail to give paramount import to the child's best interests; (2) create presumptions in favor of family member visitation if the child has a preexisting relationship with the family member; (3) violate the constitutional protections parents are afforded to raise their children with no interference from the State; and (4) strip the trial court of its ability to determine whether a visitation schedule is in the best interests of the child.

At the final evidentiary hearing held March 16 to 18, 2021, the trial court allowed the parties to present oral argument on the Barnhills’ motion. On March 31, 2021, the trial court issued a final order granting Alford's petition for grandparent visitation. On the same date, the trial court issued an order denying the Barnhills’ motion to declare OCGA § 19-7-3 (c) (1), (c) (3), and (c) (5) unconstitutional.

In denying the Barnhills’ motion, the trial court summarily concluded that

[b]ecause all presumptions are in favor of the constitutionality of a statute, the burden is on the party claiming that the law is unconstitutional to prove it. Under this framework, this Court finds that OCGA § 19-7-3 is not unconstitutional as applied to this case because: (A) [paragraph] (c) (1) does not create a presumption of harm against a parent's rights; (B) [paragraph] (c) (3) does not divest this Court of authority to make a determination in the best interests of the child; and (C) [paragraph] (c) (5) is not implicated in this Court's decision, but even if it were, it is severable from the statute.

(Citation and punctuation omitted.)

Specifically, with respect to OCGA § 19-7-3 (c) (1),⁸ the trial court determined that this subsection

does not create any presumption of harm or any presumption of custody determination in favor of any party [because] the statute provides the Court with the discretion to award custody to a child's family member where there is clear and convincing evidence that the health and welfare of the child would be harmed unless visitation is granted and the best interests of the Child would be served by that visitation.

(Emphasis in original.) The trial court also noted that the factors set forth in OCGA § 19-7-3 (c) (1) (A) to (D) were to be considered by the court "in making that determination," but did not "impose any presumption of harm or presumption in favor of the family member seeking custody." (Emphasis in original.) The trial court concluded that, because Alford had to "prove by clear and convincing evidence that there would be harm to the child without visitation and that such visitation is in the child's best interests," OCGA § 19-7-3 (c) (1) "does not contain any implication of a presumption of harm." (Emphasis in original.)

As to OCGA § 19-7-3 (c) (3),⁹ the trial court explained that this paragraph "does not unconstitutionally interfere with the parent-child relationship" because the "rebuttable presumption" in this paragraph "is not automatic," and the provision "remains subservient to the clear and convincing evidence standard imposed by paragraph (c) (1)." In other words, OCGA § 19-7-3 (c) (3) does not displace the requirement in OCGA § 19-7-3 (c) (1) that "the court find[ ] by clear and convincing evidence that 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).

Additionally, in the trial court's final order awarding grandparent visitation rights to Alford, the trial court held that—"even without the rebuttable presumption" in paragraph (c) (3)—Alford "met her burden" pursuant to OCGA § 19-7-3 (c) (1) because "[t]here is clear and convincing evidence that the Child would suffer actual emotional harm unless visitation [with Alford] is granted," and "it is in the best interests of the Child that visitation be granted."

Finally, as to OCGA § 19-7-3 (c) (5),¹⁰ the trial court noted that, because the court determined it was in the best interests of the Child to have more than 24 hours of visitation per month with Alford—i.e., more than the statutory minimum—the court did not need to rule on the constitutionality of the minimum imposed by (c) (5).

The Barnhills appealed the trial court's rulings to the Court of Appeals, and the Court of Appeals transferred the case to this Court on May 27, 2022, noting that this Court has exclusive jurisdiction over all cases involving construction of the Constitution of the State of Georgia and of the United States and all cases in which the constitutionality of a law, ordinance, or constitutional provision has been called into question. See Atlanta Independent School System v. Lane , 266 Ga. 657, 657 (1), 469 S.E.2d 22 (1996).

2. Analysis

(a) Barnhill's Motion to Dismiss

On appeal, the Barnhills contend that the trial court erred in denying Barnhill's motion to dismiss because Alford had no standing to bring and prosecute this grandparent visitation action under OCGA § 19-7-3 (b) (2) and because she filed the action prematurely in violation of OCGA § 19-7-3 (c) (2). We address each of these arguments in turn.

(i) Standing

As an initial matter, we conclude that, although the Barnhills argue that Alford had "no standing" to prosecute this action, Alford's standing is not really at issue in this case. Unquestionably, at the time Alford filed her petition for grandparent visitation rights in May 2018, she had standing to do so as the "parent of a minor child's parent who has died." OCGA § 19-7-3 (a) (2).

The Barnhills’ real position—as suggested by their arguments and the law cited in support thereof—is that Katheryn's subsequent adoption of the Child prohibited Alford...