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Fielder v. Johnson

Court of Appeals of Georgia

July 16, 2015

FIELDER et al.
v.
JOHNSON

Reconsideration denied July 31, 2015 -- Cert. applied for.

Grandparent visitation. Glynn Superior Court. Before Judge Lane.

Holle Weiss-Friedman, for appellants.

Taylor, Odachowski, Schmidt & Crossland, Donna L. Crossland, for appellee.

PHIPPS, Presiding Judge. Doyle, C. J., and Boggs, J., concur.

OPINION

Page 832

Phipps, Presiding Judge.

In May 2013, Samuel and Julie Fielder filed a petition under OCGA § 19-7-3 (commonly known as the Grandparent Visitation Statute),[1] seeking visitation with the minor child of their deceased daughter. The Fielders (hereinafter, the Grandparents) named as defendant the child's father, Kelly Johnson (hereinafter, the Father). He filed a motion to dismiss the Grandparents' action, arguing that they lacked standing. The trial court granted the motion, and the Grandparents appeal. For reasons that follow, we reverse.

In support of his motion to dismiss, the Father presented his affidavit detailing this chronology of events that preceded the Grandparents' action: (i) he and the child's mother were once married; [333 Ga.App. 659] (ii) upon their divorce, he was awarded sole physical custody of the child; (iii) he married another woman; (iv) the child's mother died; then (v) his wife adopted the child in 2012. Additionally, the Father averred:

At all times since [my wife] and I married, [the child] has lived with both of us and continues to do so today. At no time have [my wife] and I been separated. We are not presently separated. Presently, [the child], [my wife], and I live together ... . Neither of us are incapacitated and neither of us has been or presently is incarcerated.

Citing those circumstances, the Father argued that subsection (b) of the Grandparent Visitation Statute, together with Kunz v. Bailey,[2] made it clear that the Grandparents' petition for visitation could not be sustained, given that it was filed as an original action.

In Kunz, biological grandparents filed an action seeking visitation with the child born to their son.[3] Prior to the action being filed, their son had terminated (surrendered) his parental rights to the child, and the child's mother had then married another man, who thereupon had adopted the child.[4] Citing that the child lived with them, the child's mother and her husband moved to dismiss the grandparents' action as unsustainable given the plain language of OCGA § 19-7-3 (b).[5]

The Supreme Court of Georgia concluded in Kunz that the parents' position was correct, setting forth the text of OCGA § 19-7-3 (b):

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 ...

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