Namdar-Yeganeh v. Namdar-Yeganeh

• Docket Number: A23A0999,A23A1000
• Decision Date: 26 October 2023
• Parties: SHELLEY NAMDAR-YEGANEH v. CYNDI NAMDAR-YEGANEH et al.; and vice versa.
• Court: Georgia Court of Appeals

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SHELLEY NAMDAR-YEGANEH v. CYNDI NAMDAR-YEGANEH et al.; and vice versa.

Nos. A23A0999, A23A1000

Court of Appeals of Georgia, Fourth Division

October 26, 2023

DILLARD, P. J., RICKMAN and PIPKIN, JJ.

PIPKIN, JUDGE.

In Georgia, under certain circumstances, grandparents have a statutory right to file an original action seeking visitation rights to their grandchildren or to intervene in existing actions involving custody and/or visitation rights. See OCGA § 19-7-3 (b) (1). The issue in this case is whether grandparents who have previously been granted visitation rights also have the right to file an action seeking to modify the existing visitation order. The trial court concluded that they did, denied the Mother's^[1] motion to dismiss the modification petition, and entered a separate order modifying the visitation order ("Final Order") .The Mother and the Appellees then filed this appeal and cross-appeal, which were docketed as Case Nos. A23A0999 and A23A1000 respectively. As more fully explained below, we reverse the denial of the Mother's motion to dismiss the modification petition and vacate the part of the Final Order modifying the existing visitation order.

The following facts underlie this appeal. The minor children in this case are a girl born in 2008 (the "Granddaughter") and a boy born in 2010 (the "Grandson"). The children's Father died in 2016; at the time of his death, the parents, children, and the Appellees all lived in New Mexico. In September 2016 - about five months after the Father's death - the Appellees filed a petition in a New Mexico court seeking visitation with the children, and in May 2017, the New Mexico Court entered a "Stipulated Order" awarding the Appellees certain visitation with the children. Following a hearing in March 2018, the New Mexico court modified the Stipulated Order but also noted that it no longer had exclusive, continuing jurisdiction under the Uniform Child Jurisdiction and Enforcement Act as there was no longer any parent living in New Mexico.^[2] In February 2019, the Appellees filed a petition in the Superior Court of Cobb County, Georgia to (1) register the 2018 New Mexico judgment, (2) modify the 2018 New Mexico judgment,^[3] and (3) find the Mother in contempt of the New Mexico judgment. The Mother responded and filed a motion to dismiss the modification part of the petition, arguing that nothing in OCGA § 19-7-3 (commonly referred to as the "Grandparent Visitation Statute"^[4]) authorizes a grandparent who has been granted visitation rights to file an action to modify or amend those rights. Following a hearing on the motion to dismiss, the trial court denied the motion, reasoning that the Appellees' petition to modify was authorized by another code section - OCGA § 199-3 (b) - and Georgia case law. Following a five-day hearing in August 2022 on the modification petition, the trial court generally expanded the visitation rights of the Appellees with respect to the Grandson but refused to require the Granddaughter to participate in visits and refused to mandate family therapy or additional reunification efforts.^[5] The Mother appeals from the order denying the motion to dismiss the modification petition and the portion of the Final Order expanding the visitation with the Grandson. In their cross-appeal, Appellees challenge certain factual findings made by the trial court concerning reunification, and they also argue that the trial court abused its discretion by refusing to mandate visitation with the Granddaughter.

Case No. A23A0999.

1. Before turning to the precise issue presented here, it is worth noting that anytime we are called upon to consider visitation issues between children of a fit parent and grandparents or other family members, we are necessarily dealing with issues of constitutional importance. See Patten v. Ardis, 304 Ga. 140, 141 (2) (816 S.E.2d 633) (2018). That is because "[p]arents have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children." Clark v. Wade, 273 Ga. 587, 596 (IV) (544 S.E.2d 99) (2001). As the Georgia Supreme Court has observed "[t]he 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). Simply put, "there is a presumption that fit parents act in the best interests of their children." Troxel v. Gransville, 530 U.S. 57, 68 (II) (120 S.Ct. 2054, 147 L.Ed.2d 49) (2000). Thus, "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself in the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Id. at 68-69. Accordingly, the Georgia Supreme Court has held that to pass constitutional muster, statutes that allow a court to grant a grandparent visitation rights over the objection of a fit parent must require a showing by clear and convincing evidence that the health or welfare of the child would be harmed unless such visitation is granted and that the best interests of the child would be served by such visitation. See Patten, 304 Ga. at 144 (3); Brooks v. Parkerson, 265 Ga. 189, 192 (2) (a) (454 S.E.2d 769) (1995); OCGA § 19-7-3 (c), (d).

The present case concerns a rather narrow issue - whether a grandparent who has been granted visitation rights is authorized by the Grandparent Visitation Statute, or any other provision of Georgia law, to file a petition seeking to modify an existing grandparent visitation order. To answer this question, we first turn to the relevant provisions of the Grandparent Visitation Statute. OCGA § 19-7-3 (b)^[6] states:

(1) Except as otherwise provided in paragraph (2) of this subsection:

(A) Any grandparent shall have the right to file an original action for visitation rights to a minor child; and

(B) Any family member [which is defined to include a grandparent, see OCGA § 19-7-3 (a) (1)] shall have the right 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, a divorce of the parents or a parent of such minor child, a termination of the parental rights of either parent of such minor child, or visitation rights concerning such minor child or whenever there has been an adoption in which the adopted child has been adopted by the child's blood relative or by a stepparent, notwithstanding the provision of Code Section § 19-8-19.

(2) This subsection shall not authorize an original action when the parents of the minor children are not separated and the child is living with both parents.

Once grandparents are granted visitation rights, those rights can be modified under OCGA § 19-7-3 (c) (2), which states, in relevant part, that

the legal custodian, guardian of the person, or parent of the child may petition the court for revocation or amendment of such rights, for good cause shown, which the court, in its discretion, may grant or deny; but such petition shall not be filed more than once in any two-year period.

(Emphasis supplied.)

To determine the proper meaning of these provisions of the Grandparent Visitation Act, we start by examining the plain language of the statute, presuming

that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would . . . [and] if the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.

(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 S.E.2d 337) (2013).

Under the plain language of OCGA § 19-7-3 (b), grandparents can either file an "original action"^[7] - provided the parents are separated and the grandchild is only living with one parent - or they can intervene in certain specified existing proceedings. See Barnhill v. Alford, 315 Ga. 304, 308-310 (2) (882 S.E.2d 245) (2022); Pate v. Sadlock, 345 Ga.App. 591, 594 (1) (b) (i) (814 S.E.2d 760) (2018). On the other hand, subsection (c) (2) specifically lists the groups of persons who may petition to modify grandparent visitation once it is granted - the legal custodian, the guardian, or parent of the child. And under the plain language of the statute, Appellees do not fall into any of these three categories. Further, to the extent any ambiguity exists in the statutory scheme, we "apply the concepts of expressio unius est exclusio alterius (expression of one thing implies exclusion of another) and expressum facit cessare tacitum (if some things are expressly mentioned, the inference is stronger that those not mentioned were intended to be excluded)."

(Citation and punctuation omitted.) Goddard v. City of Albany, 285 Ga. 882, 884 (684 S.E.2d 635) (2009). Since grandparents are named as persons who may initiate an action to visit with their grandchildren, but not listed among the persons who may seek to modify an existing grandparent visitation order, under these long-standing tenets of statutory construction, we conclude that the Grandparent Visitation Statute does not authorize a grandparent to initiate an action to modify an existing grandparent visitation order.

Implicitly acknowledging that nothing in OCGA § 19-7-3 specifically authorizes grandparents to file an action...