Patten v. Ardis, 062918 GASC, S18A0412

Docket Nº:S18A0412
Opinion Judge:Blackwell, Justice.
Party Name:PATTEN v. ARDIS.
Case Date:June 29, 2018
Court:Supreme Court of Georgia
 
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PATTEN

v.

ARDIS.

No. S18A0412

Supreme Court of Georgia

June 29, 2018

          Blackwell, Justice.

         In Brooks v. Parkerson, 265 Ga. 189 (454 S.E.2d 769) (1995), this Court held that the Grandparent Visitation Act of 19881 was unconstitutional to the extent that it authorized courts to award child visitation to a grandparent over the objection of fit parents and without a clear and convincing showing of harm to the child. Seventeen years later, the General Assembly enacted the Grandparent Visitation Rights Act of 2012, 2 a provision of which authorizes courts to award child visitation in some circumstances to a grandparent over the objection of a fit parent and without a clear and convincing showing of harm to the child: [I]f one of the parents of a minor child dies, is incapacitated, or is incarcerated, the court may award the parent of the deceased, incapacitated, or incarcerated parent of such minor child reasonable visitation to such child during his or her minority if the court in its discretion finds that such visitation would be in the best interests of the child.

OCGA § 19-7-3 (d). This provision applies to fewer cases than the statute that we held unconstitutional in Brooks (which authorized awards of visitation to "any grandparent"), but it suffers from the same constitutional infirmity - it permits a court to set aside the decisions of a fit parent about what is best for his or her child, without clear and convincing proof that those decisions have harmed or threaten to harm the child, and based simply on the conclusion of a judge that he knows better than the parent what is best for the child. Adhering to our decision in Brooks, we hold today that OCGA § 19-7-3 (d) violates the right of parents to the care, custody, and control of their children, as that fundamental right is guaranteed by the Constitution of 1983.

         1. In 2015, Robert Shaughnessy and Katie Patten married and conceived a child. Shaughnessy died soon thereafter. In November 2015, the widowed Patten gave birth to a baby girl, and Patten permitted Shaughnessy's mother, Mary Jo Ardis, to visit with the baby on a couple of occasions. But those visits apparently did not go well, 3 and in November 2016, Ardis filed a petition in the Superior Court of Lowndes County pursuant to OCGA § 19-7-3 (d) for court-ordered visitation with her granddaughter.4 Citing Brooks, Patten responded that subsection (d) unconstitutionally impairs a parent's "right to raise his or her child without undue state interference," and upon this ground, Patten moved to dismiss the petition for visitation. In May 2017, following a hearing, the trial court held that subsection (d) is constitutional, 5 denied the motion to dismiss, and granted the petition for visitation pursuant to subsection (d), concluding that visitation with Ardis is consistent with the best interests of the girl.[6] Patten appeals, and we reverse and remand with direction.[7]

         2. The right of parents to the care, custody, and control of their children is deeply embedded in our law. See In re L.H.R., 253 Ga. 439, 445 (321 S.E.2d 716) (1984). More than a hundred years ago, this Court identified it as among the inherent rights that are derived from the law of nature. See Sloan v. Jones, 130 Ga. 836, 847 (62 SE 21) (1908). See also Moore v. Dozier, 128 Ga. 90, 93-94 (57 SE 110) (1907). It found recognition in the common law of England, long before Georgia adopted the common law as our own.8 See W. Blackstone, 1 Commentaries on the Laws of England 440-441 (1st ed. 1765). And this Court recognized the right as early as 1858. See Rives v. Sneed, 25 Ga. 612, 622 (1858).

         At common law, a parent "possessed the paramount right to the custody and control of his minor children." J. Schouler, A Treatise on the Law of Domestic Relations § 245 (4th ed 1889) See also J Kent, 2 Commentaries on American Law at 162-163 (1827) This "paramount right" was "controllable, in general, by the court only in the case of very gross misconduct, injurious to the child" Schouler, supra at § 247 See also Hodgson v Minnesota, 497 U S 417, 483 (II) (110 S.Ct. 2926, 111 L.Ed.2d 344) (1990) (Kennedy, J, concurring in part and dissenting in part). The rule at common law is consistent with the approach of the early Georgia cases, which acknowledged the "paramount right" of parents to the care, custody, and control of their children, but recognized that the right could be overcome by a showing of harm or threat of harm to the child. See, e.g., Sloan, 130 Ga. at 851 ("[T]he right of the father should not be disregarded and his child awarded to the custody of one neither the father nor mother (even though a grandparent) save for grave and substantial cause."); Moore, 128 Ga. at 93 ("If the parent so far fails in his or her duty that the child is in destitution and suffering, or is...

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