Lightfoot v. Hollins
| Decision Date | 18 March 2011 |
| Docket Number | No. A10A1923.,A10A1923. |
| Citation | 308 Ga.App. 538,707 S.E.2d 491 |
| Parties | LIGHTFOOTv.HOLLINS et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Stearns–Montgomery & Proctor, Mary Stearns–Montgomery, Atlanta, Ryan A. Proctor, Marietta, for appellant.Anthony M. Zezima, Atlanta, for appellees.ADAMS, Judge.
Harry M. Lightfoot, Jr., M.D., the biological father of J.L., appeals the denial of his motion for summary judgment in this action brought by the child's maternal grandparents seeking visitation with the child. We affirm.
Construed in favor of the grandparents, the evidence of record shows that Lightfoot and Dawn Hollins were married in 2001 and J.L. was born on December 19, 2002 in Durham, North Carolina. The parents separated in January 2003 and were divorced in June 2004. Hollins had primary custody of the child following the divorce. But, tragically, Hollins died on October 5, 2004, following a long battle with cancer. Lightfoot obtained custody of the child at that time. In September 2006, Lightfoot married Tywanda Ellison. In April 2007, Ellison purported to adopt the child in court proceedings in Durham County, North Carolina. The couple and child now live in Cobb County. As of the date of this opinion, the child is almost eight years old.
Leon and Carol Hollins are the child's maternal grandparents, and they live in Maryland. On November 2, 2009, the grandparents petitioned the Superior Court of Cobb County for visitation privileges and later amended the petition. The grandparents averred that Carol Hollins lived with Dawn and the child on a daily basis in Durham for the first 22 months of the child's life during the time that Dawn was struggling with cancer, but that since Dawn's death, Lightfoot has only allowed the grandparents to visit the child twice, both times in 2005, when the child was two years old.
Six weeks after the petition was filed, Lightfoot filed a motion for summary judgment. He argued that because his current wife had legally adopted the child, the grandparents' rights to the child had been extinguished by operation of law. Furthermore, he asserted that the grandparents had failed to satisfy the requirements of OCGA § 19–7–3(c) by providing clear and convincing evidence that the health or welfare of the child would be harmed if visitation were denied and that they failed to show that it would be in the best interest of the child for visitation to be granted. Lightfoot argued that because the grandparents had not seen the child since August 2005 or had any other contact, “[t]here are no facts or circumstances which can be alleged, in the face of this admitted non-relationship, that would sufficiently satisfy the criteria necessary to be successful with the Petition.” He added that he was unaware of any attempts by the grandparents during that time to have contact with the child. Yet he asserted that at one unspecified point in time, the grandparents did seek visitation, for a full week each month and every other weekend, and he admits that communication regarding visitation continued through June 2007. Lightfoot's current wife averred that “[the child] does not have any memories of Leon and Carol Hollins and does not know who they are.” Both Lightfoot and his wife stated that they did not want the court to order visitation to the grandparents.
In response to the motion, the grandparents averred that Lightfoot thwarted their attempts to have contact with the child, even though, in September 2004, he indicated he would make a good faith effort to arrange grandparent visitation. The grandparents also took steps from January 2005 through June 24, 2007 to attempt to establish visitation. They submitted several affidavits from witnesses who testified to the nature of the relationship between the child and her grandparents during the time that her mother was receiving cancer treatment, and testified that, based on that relationship, it would be in the child's best interest to know her maternal grandparents.
In January 2010, the grandparents moved for appointment of a guardian ad litem as authorized by OCGA § 19–7–3(d)(1). At the hearing on the motion for summary judgment, the grandparents also invoked OCGA § 9–11–56(f), which authorizes a court to refuse to grant summary judgment if the party opposing the motion shows that he or she is unable to present facts essential to justify opposition to the motion. And they encouraged the court to appoint a guardian in order to “develop the facts of this case.”
On February 8, 2010, the trial court held that OCGA § 19–7–3 provides a basis for the grandparents' claim despite any alleged adoption, a determination that Lightfoot does not contest. The court held that the lack of contact between the grandparents and the child over the four years prior to the petition was not sufficient standing alone to resolve all of the facts relevant to the petition. The court appointed a guardian ad litem for the purpose of representing the best interest of the child. The guardian was given the right and authority “to completely investigate all aspects of the case....”
Lightfoot contends the trial court erred by denying summary judgment because the grandparents failed to produce clear and convincing evidence that the health or welfare of the child would be harmed absent their visitation. He also contends the lack of contact for over four years was sufficient as a matter of law to resolve the issue before the court. He argues that there is no reason to invite the intrusions that the grandparents seek during the litigation, such as “therapists to examine the child, to examine the parents; guardians ad litem[ ] to examine the homes; discovery and depositions conducted.”
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56(c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245(1), 577 S.E.2d 564 (2003).
The relevant Code section provides the grandparents with the right to seek visitation in the present circumstances:
Except as otherwise provided in this subsection, any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child,...
To continue reading
Request your trial
-
Kunz v. Bailey
...living with the child—includes adoptive parents”? Bailey v. Kunz, 307 Ga.App. 710, 706 S.E.2d 98 (2011). Compare Lightfoot v. Hollins, 308 Ga.App. 538, 707 S.E.2d 491 (2011).Because we answer the question in the affirmative, we must uphold the judgment by the Court of Appeals. A plain readi......
-
Hudgins v. Harding, A11A2247.
...Statute, codified in OCGA § 19–7–3(b), however, sets forth a limited exception to OCGA § 19–8–19(a)(1). See Lightfoot v. Hollins, 308 Ga.App. 538, 540, 707 S.E.2d 491 (2011). Specifically, OCGA § 19–7–3(b) entitles a grandparent of a minor child to seek visitation rights “whenever there has......
- Flint v. the State (two Cases).
-
Domestic Relations - Barry B. Mcgough and Elinor H. Hitt
...(internal quotation marks omitted); O.C.G.A. § 19-9-3(a)(3) (2010 & Supp. 2011). 30. Price, 306 Ga. App. at 284, 701 S.E.2d at 906. 31. 308 Ga. App. 538, 707 S.E.2d 491 (2011). 32. Id. at 538, 707 S.E.2d at 491-92. In November 2009, the Hollins filed an action for visitation pursuant to O.C......