Patten v. Ardis

• Decision Date: 29 June 2018
• Docket Number: S18A0412
• Citation: 304 Ga. 140,816 S.E.2d 633
• Parties: PATTEN v. ARDIS.
• Court: Georgia Supreme Court

304 Ga. 140

816 S.E.2d 633

PATTEN

v.ARDIS.

S18A0412

Supreme Court of Georgia.

Decided: June 29, 2018

Gregory Alan Voyles, Moore & Voyles, P.C., Valdosta, Mary Katherine Durant, Durant Law LLC, Stone Mountain, Attorneys for the Appellant

James Thomas Bennett, Kari Anne Bowden, Bennett Law Firm, LLP, Valdosta, Attorneys for the Appellee

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 S.E. 21 (1908). See also Moore v. Dozier, 128 Ga. 90, 93-94, 57 S.E. 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 (1^st 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 (4^th 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, 62 S.E. 21 ("[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, 57 S.E. 110 ("If the parent so far fails in his or her duty that the child is in destitution and suffering, or is abandoned, or is being reared under immoral, indecent, or obscene influences, likely to degrade it and bring it to a life of vice, the state may interpose its protecting arm and guard the little life against the impending disaster."). See also Hill v. Rivers, 200 Ga. 354, 358-365, 37 S.E.2d 386 (1946) (surveying early cases).

Our decision in Miller v. Wallace, 76 Ga. 479 (1886), is well illustrative of this approach. In Miller, maternal grandparents sought by petition for a writ of habeas corpus to wrest custody of a child from her father, following the death of her mother. We held that, although the law conferred a considerable discretion upon habeas courts "as to whom the custody of [a] child shall be given," 76 Ga. at 484 (2), this discretion did not stretch so far as to permit an award of custody to the grandparents as against the father in the absence of a voluntary relinquishment of his parental rights, parental abandonment or unfitness, or other exceptional cause, established by clear and strong evidence. See id. at 486-487. We explained:

Prima facie, the right of custody of an infant is in the father, and when this right is resisted, upon the ground of his unfitness for the trust or other cause, a proper regard to the sanctity of the parental relation will require that the objection be sustained by clear and satisfactory proofs. A clear and strong case must be made to sustain an objection to the father’s right.... The discretion to be exercised by the courts in such contests is not arbitrary. The rights of the father, on the one hand, and the permanent interest and welfare of the infant, on the other, are both to be regarded, but the right of the father is paramount, and should not be disregarded, except for grave cause. The breaking of the tie that binds them to each other can never be justified without the most solid and substantial reasons, established by plain proof.

Id. (citation and punctuation omitted).

Today, "[t]here can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to its offspring." Nix v. Dept. of Human Resources, 236 Ga. 794, 795, 225 S.E.2d 306 (1976). See also Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) ("The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition."); In re Suggs, 249 Ga. 365, 367, 291 S.E.2d 233 (1982) ("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."). The United States Supreme Court has held that the right of fit parents to the care, custody, and control of their children is secured by the United States Constitution. See Troxel v. Granville, 530 U.S. 57, 65 (II), 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ("[T]he interest of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized by this Court."). See also Quilloin v. Walcott, 434 U.S. 246, 255 (II) (A), 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ("We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected."). And this Court has recognized that the right is secured by our state constitution as well.⁹

See Brooks, 265 Ga. at 192 (2) (a), 454 S.E.2d 769. See also Clark v. Wade, 273 Ga. 587, 596 (IV), 544 S.E.2d 99 (2001) (Fletcher, P.J.) ("Parents have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children.").¹⁰

3. In Brooks, we considered the constitutionality of a statute that provided that the courts "may grant any grandparent of [a] child reasonable visitation rights upon proof of special circumstances which make such visitation rights necessary to the best interests of the child." 265 Ga. at 190 (1), 454 S.E.2d 769 (citing former OCGA § 19-7-3 (c) ). After noting the fundamental nature of the right of parents to the care, custody, and control of their children and surveying the cases that had recognized that the right is constitutionally protected, see id. at 191-192 (2) (a), 454 S.E.2d 769, we observed 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." Id. at 193 (2) (b), 454 S.E.2d 769. We also pointed to cases in which we previously had held that the requisite threat to the health or welfare of a child had to be proved by clear and convincing evidence. See id. (citing Suggs and L.H.R., supra). W...