If you’re a family member who has a close relationship with a child, you may be wondering whether you have a legal right to custody or visitation. While courts assume that parental custody is in the best interests of the child, there may be certain circumstances under which a grandparent, great-grandparent, sibling or another family member may petition the court for visitation so that they may continue to strengthen their bond. There are also situations where a court may recognize family member custody rights — such as in cases where the child’s parents are unfit.

Can Family Members Petition for Visitation?

Family members may share a close bond with the children in their family. While grandparents, great-grandparents, and siblings don’t automatically have family member custody rights, they may be entitled to petition for visitation in some cases. However, in order to grant reasonable visitation rights, a court must find by clear and convincing evidence that:

1. The health or welfare of the child would be harmed unless such visitation is granted, and
2. The best interests of the child are served by such visitation.

The law specifies that not providing the child with an opportunity to develop a relationship with a family member is not considered to be harmful when there is no “substantial preexisting relationship between the child and the family member.” The court would consider several factors when considering whether a child’s welfare or health would be harmed without visitation from a family member, including the following:

• The child resided with the family member for a period of six months or more;
• The family member provided financial support for the child’s basic needs for at least one year;
• There was an established pattern of regular visitation or child care by the family member;
• Any other circumstances that indicate emotional or physical harm would result if visitation is not granted.

Courts in Georgia give great weight to a parent’s decision regarding family member visitation. But a parent’s decision is not conclusive if the child would be emotionally harmed without contact. If a parent opposes visitation and their decision is reasonable based on the child’s wellbeing, the court may honor it. If visitation is granted, it must not be less than 24 hours in any one month — or interfere with the child’s school or extracurricular activities.

Grandparent Visitation Rights

If one of the child’s parents passes away, is incapacitated, or incarcerated, their parent may be awarded grandparent visitation if it is in the best interests of the child. The custodial parent’s judgment may be considered by the court in these situations, but it is not conclusive as to the child’s best interests.

When Can Family Members Petition for Custody?

There are two ways a grandparent or another relative may obtain family member custody rights. They may either petition for custody or file a dependency petition in Juvenile Court, depending on the specific facts of the case. If a family member believes that the child’s parents are unfit or they are unable to provide a stable home environment, they can petition for custody in Superior Court.

Dependency Cases

A grandparent or another family member may file a dependency petition to obtain temporary custody in cases involving parental unfitness, abuse, or neglect — or while the parent addresses the issues that make them unable to care for the child. In order to prevail in a dependency case, the family member must be able to demonstrate that there is a serious risk of physical or emotional harm, and the child would suffer without intervention.

These matters typically involve multiple parties, including family members, parents, and state agencies. The Department of Children and Family Services can also commence a dependency case after receiving a report about the child’s care and conducting an investigation through social workers.

Temporary Guardianships

Georgia law also permits temporary guardianships in emergency situations where a parent has been hospitalized, arrested, or is unavailable to care for the child. This type of proceeding is distinct from a dependency case. A temporary guardianship is established through the probate court and occurs when a parent voluntarily gives temporary guardianship to another person.

What is the Equitable Care Act?

Family member custody rights can also be obtained through Georgia’s equitable caregiver statute. Specifically, the Act allows a family member, extended family member, or a non-relative who serves as a child’s primary caregiver the right to petition for custody. However, there are strict criteria that must be met in order to qualify as the caregiver of a child. The caregiver must establish that:

1. They have assumed a permanent parental role, which was acknowledged by one of the child’s parents.
2. They provided consistent care for the child without expecting to be financially compensated.
3. They developed a strong emotional bond with the child.
4. The child would suffer long-term emotional harm if the relationship were not continued.

Notably, the Act does not terminate the right of the child’s biological parents. It only grants custody rights to the equitable caregiver if a court has determined it is in the child’s best interests.

Contact an Experienced Child Custody Attorney

If you have questions about pursuing family member custody rights, it’s essential to consult with a knowledgeable child custody attorney. At NVP Family Law, we provide skillful representation and compassionate counsel to clients for divorce and family law matters, including those involving family member custody rights and visitation. We welcome you to contact us for a consultation online or by calling 470-314-0253 to learn how we can help.