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Reid v. Lindsey

Court of Appeals of Georgia, First Division

January 22, 2019


          BARNES, P. J., MCMILLIAN and REESE, JJ.

          REESE, JUDGE.

         In this grandparent visitation case, John Mitchell Reid, Jr., the father of D. R., a 12-year-old boy, appeals from the trial court's order granting visitation with D. R. to Reid's mother, Vickie Lindsey. Reid contends that the trial court's findings of fact were not supported by clear and convincing evidence, that the court erred in ruling that Lindsey's visitation had priority over D. R.'s extracurricular activities, and that it erred in ordering Reid to pay a portion of the Guardian ad Litem's fees. For the reasons set forth, infra, we affirm the court's order as to its award of visitation to Lindsey, but reverse the court's order requiring Reid to pay a portion of the Guardian ad Litem's fees.

         Viewed in the light most favorable to the trial court's judgment, [1] the evidence showed the following facts. D. R. and his twin brother, J. R., were born to Reid and his first wife, Sherry, in December 2005. J. R. was born with serious medical issues that required numerous surgeries and prolonged periods of hospitalization in Atlanta. As a result, Sherry Reid was usually at the hospital with J. R., and Reid had to work and take care of their other children at home. Given these circumstances, Lindsey and her husband[2] (collectively, "the grandparents") offered to take care of D. R. in their home. Over the next ten years, D. R. lived almost exclusively in the grandparents' Cherokee County home, although he often visited his father and the rest of his family. Further, during that ten-year period, Reid and his family sometimes also lived in the grandparents' home (hereinafter, "Lindsey's home") due to Reid's financial difficulties and J. R.'s frequent hospitalizations.

         From 2006, when D. R. began living in Lindsey's home, until May 2016, his grandparents provided almost all of his financial support, and Lindsey home-schooled D. R. and made most of the decisions concerning his care. The grandparents enrolled D. R. in sports programs and music lessons, routinely took him to church, and often took him to college and professional football and baseball games, to theaters and museums, and on out-of-state trips.

         In August 2011, when D. R. was five years old, his mother suddenly and unexpectedly died. The grandparents purchased a home near theirs for Reid and J. R. to live in, although D. R. continued to live with his grandparents. Reid remarried shortly after his first wife's death, but he and his second wife divorced about a year later. Then, in 2015, Reid married again, and he and his wife, Nicky, had a daughter, K. R.

         In May 2016, Reid moved D. R. out of Lindsey's home and into his home ("Reid's home") to live full-time with him, his wife, D. R.'s twin brother, J. R., and his half-sister, K. R. Reid also notified Lindsey that she would not be allowed any visitation or phone contact with D. R. unless he (Reid) was present.

         On May 31, 2016, Lindsey filed a petition against Reid seeking primary custody of D. R. and child support.[3] She subsequently amended the petition to include a request for reasonable visitation with D. R. as an alternative to custody and child support. In February 2017, the trial court conducted a hearing, during which Lindsey focused solely on her request for visitation with D. R., stating that she was not asking for custody at that time. Following the hearing, the court issued a temporary order in which the court made the following findings of fact.

         According to the court, in the nine months that had passed between May 2016, when Reid moved D. R. out of Lindsey's home, and the date of the temporary hearing, D. R. had been "happy, loved, and well cared for" by Reid; enjoyed many new activities with his father; had a "close and warm loving relationship" with all of his family members; appeared to feel like he was part of the family; and did not want to stop living with his father.

         Even so, the court found that, in the ten years between D. R.'s birth in December 2005 and May 2016, Lindsey had been D. R.'s primary physical custodian; provided almost all of D. R.'s financial support; met all of his "health, dental, education, social, and moral needs[;]" provided D. R. with family vacations, celebrations for special events and holidays, and numerous extracurricular and cultural activities; and ensured that D. R. had ongoing contact with his twin brother, J. R., and other members of his family and step-families. The court found that, during this time, Reid had "made no meaningful assertion of his parental rights [and] agreed to and supported [Lindsey] raising [D. R.]"

         The court found that, as a result of Lindsey's consistent and stable parental care and support of D. R. throughout his childhood, D. R. was "very bonded with [Lindsey] and her husband." The court found, however, that Reid had "prevented reasonable contact between [D. R.] and [Lindsey]" during the nine months that had passed since Reid removed D. R. from Lindsey's home. According to the court, D. R. had already experienced significant loss during his childhood, including the death of his mother, the separation of him from his family due to the substantial medical needs of his twin brother, the loss of his relationship with his former step-mother and step-siblings, and his sudden removal from Lindsey, "his primary caregiver of ten (10) years[.]" The court found that, as a result, "[c]ontinued removal from [Lindsey] would be another traumatic loss and harmful to [D. R.]."

         Based upon these findings of fact, the trial court concluded that there was clear and convincing evidence that D. R. would be harmed if he was denied contact with Lindsey and that such contact was in D. R.'s best interests. As a result, the court awarded Lindsey visitation with D. R. on weekends (subject to his scheduled extracurricular activities) and for two weeks of uninterrupted visitation during summer vacation, as well as permission for Lindsey to call D. R. three times a week.

         In the months after the March 2017 temporary order took effect, however, several issues arose between the parties that significantly interfered with or prevented Lindsey's visitation with D. R. For example, Reid enrolled D. R. in various baseball, basketball, and other sports programs that required D. R. to attend training sessions and/or games for several hours almost every weekend. The hours of these activities varied and sometimes changed at the last minute. The activities also required Lindsey to drive several miles to the sports venue to drop off D. R. and then wait until he was finished. As a result, Lindsey was often prevented from making other plans for her visitation with D. R. Further, Lindsey's visitation during school breaks and summer vacation were hampered or prevented altogether because of sports activities or because Reid made alternative plans for D. R.

         In early 2018, the court conducted a final hearing on Lindsey's petition, after which it issued the final order in which it expressly adopted and incorporated its findings of fact from the March 2017 temporary order, with one exception. The court modified the prior fact findings as to Reid's involvement with D. R. while the child lived with Lindsey, finding that Reid had maintained an ongoing relationship with D. R. during this period and had visited the child regularly, and that D. R. briefly resided in Reid's home at some point. The court also found that Reid had provided some financial support for D. R. and that, when the child was with him, Reid had provided for the child's basic needs. Still, according to the court, "[a]lthough [Lindsey] did not exclusively raise [D. R.] for ten (10) years, she did provide the majority of parenting. [Reid] allowed [Lindsey] to provide all financial support of the child throughout most of [the child's] life[, ] as well as [make] the majority of parental decisions."

         In addition, the court expressed concern about the conduct of Reid and D. R. toward Lindsey since the temporary order took effect, specifically the "high conflict visitation exchanges between the parties; disrespectful actions of [D. R.] towards [Lindsey]; rescheduling of visitations; [Reid's] denial of Court[-]Ordered visitations; [Reid's] unreasonable interference with [Lindsey's] visitations; and [Reid's] significantly increasing [D. R.'s] activities[.]"[4]

         In addressing D. R.'s relationship with Lindsey, the court found that D. R. had an important relationship with Lindsey, that Lindsey had had "a significant impact" on the child's life, and that, "for many years, the child viewed her in a parental role."

         According to the court, D. R. had "experienced tragic loss and much instability in his life[, ]" and Lindsey had been "a consistent and stable parental figure" for him. The court found that D. R. and Lindsey had "a strong emotional bond [that was] important to the child's welfare[, ]" that denial of visitation with Lindsey would harm D. R., and that a set, mandatory visitation schedule was in D. R.'s best interests, because he would then "know what to expect."

         Based upon these facts, which the trial court found were supported by clear and convincing evidence, the court concluded that a set visitation schedule that provided for regular, exclusive visitation with Lindsey was in D. R.'s best interests and that denial of such visitation would harm D. R.'s welfare. As a result, the trial court granted Lindsey visitation with D. R. for a minimum of one weekend each month, two weeks during D. R.'s summer vacation, a portion of his school breaks, and various holidays, subject to certain conditions involving his extra-curricular activities.[5] It is from this order that Reid filed the instant appeal.

In reviewing an order granting grandparent visitation, we view the evidence in the light most favorable to the trial court's judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the mandated visitation was authorized.
[I]n doing so, we do not weigh the evidence or determine witness credibility, but defer to the trial court's factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.[6]

         With these guiding principles in mind, we turn now to Reid's specific claims of error.

         1. Reid contends that the trial court erroneously failed to make specific findings of fact, based on clear and convincing evidence, that D. R.'s health and welfare would be harmed unless visitation was granted or that visitation would be in the child's best interests.[7] We disagree.

         When a minor child is not living with both of his parents because the parents are separated or, as in this case, one of the parents has died, the child's grandparent has the right to file an original action for visitation with the child pursuant to OCGA § 19-7-3, [8] which is commonly referred to as the "Grandparent Visitation Statute."[9]The Georgia General Assembly enacted the statute "to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild, where, as here, a child's parent objects. In this regard, the statute codified a standard for the trial courts to utilize in balancing the wishes of an alienated grandparent, the rights of the parents, and the interests of the child."[10] The statute provides as follows:

         Upon the filing of an original action [for visitation], the court may grant any family member of the child reasonable visitation rights if the court finds by clear and convincing evidence that the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation. The mere absence of an opportunity for a child to develop a relationship with a family member shall not be considered as harming the health or welfare of the child when there is no substantial preexisting relationship between the child and such family member. In considering whether the health or welfare of the child would be harmed without such visitation, the court shall consider and may find that harm to the child is reasonably likely to result when, prior to the original action or intervention:

(A) The minor child resided with the family member for six months or more;
(B) The family member provided financial support for the basic needs of the child for at least one year;
(C) There was an established pattern of regular visitation or child care by the family member with the child; or
(D) Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.

         The court shall make specific written findings of fact in support of its rulings.[11]

         Further, the statute provides that,

[w]hile a parent's decision regarding family member visitation shall be given deference by the court, the parent's decision shall not be conclusive when failure to provide family member contact would result in emotional harm to the child. A court may presume that a child who is denied any contact with his or her family member or who is not provided some minimal opportunity for contact with his or her family member when there is a preexisting relationship between the child and such family member may suffer emotional injury that is harmful to such child's health. Such presumption shall be a rebuttable presumption.[12]

         (a) As an initial matter, in arguing that the trial court failed to make specific findings of fact in support of its award of visitation, Reid has misrepresented the court's final order by ignoring all of the order except for the court's ultimate conclusion, i.e., that D. R. would be harmed if visitation was denied and that such visitation was in D. R.'s best interests. As shown above, in the temporary order, the court made numerous factual findings based on the clear and convincing evidence presented. And, in the final order, the court expressly incorporated the findings of fact from the temporary order and made additional fact findings based on what had occurred with D. R. and the parties ...

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