HANNAH et al.
HATCHER et al.
DILLARD, P. J., GOBEIL and HODGES, JJ.
Dillard, Presiding Judge.
and Billie A. Hannah appeal from the superior court's
dismissal of their petition for emergency and permanent
custody of minor child L. R. in an action against her legal
mother, Sara Paige Hatcher, and her biological father, Randy
Keith Ray. The Hannahs argue that the superior court erred by
(1) concluding that they lacked standing as L. R.'s
paternal grandparents to bring an action for custody when
their son, Ray, never legitimated L. R., and (2) dismissing
the action when third parties may prevail in custody actions
under OCGA § 19-7-1 (b.1). Because we agree the superior
court erred in concluding that the Hannahs lack standing, we
reverse the court's judgment and remand the case for
further proceedings consistent with this opinion.
record shows that the Hannahs filed a petition for emergency
and permanent custody of L. R. on November 21, 2018. In doing
so, the Hannahs alleged that (1) they were the paternal
grandparents to L. R., who was 8 years old at the time; (2)
their son was incarcerated and never legitimated L. R.; (3)
Hatcher was L. R.'s natural mother and legal custodian;
(4) L. R.'s parents never married; (5) L. R. resided with
them for approximately 80 percent of her life and currently
did so; and (6) Hatcher executed an agreement on September
25, 2017, granting temporary guardianship to Billie Hannah.
Thus, the Hannahs requested that the court grant them
immediate, temporary, and permanent custody of L. R. because
her parents were unfit for a number of reasons-ranging from
current incarceration, pending criminal charges, drug abuse,
and more. In the alternative, Billie Hannah requested that
she be granted grandparent visitation.
November 27, 2018, the superior court awarded temporary legal
and physical custody of L. R. to the Hannahs and scheduled a
show-cause hearing for January 9, 2019, to establish whether
the Hannahs' petition should be granted. Neither Hatcher
nor Ray filed a response to the petition. Then, at the
hearing, Billie Hannah testified, and the Hannahs tendered
into evidence both the temporary guardianship agreement
previously executed by Hatcher, as well as a July 15, 2011
consent order for child support concluding that Ray was
"the parent" of L. R.
superior court issued an order on January 10, 2019, noting
that Hatcher "was not present at the hearing but she was
personally served with a summons and copy of this custody
action on the day of the hearing" and "left the
courthouse after she was served with this action." The
court also noted that Ray is L. R.'s biological father
but "not the legal father," and that he "was
not served with this action, has not acknowledged service,
and was not present at court for the hearing" because he
is "incarcerated in a county detention center."
superior court's order went on to explain that, after
receiving testimony and learning that Ray was not married to
Hatcher and had never legitimated L. R., it was unsure of
its ability to proceed. The court then concluded that the
facts of the case differed from those in Reeves v.
Hayes,  which the Hannahs asserted provided them
with standing. The court also determined that it could not
apply habeas corpus law to grant custody to the
Hannahs as third parties because it was not faced with a
habeas action. Finally, the court noted that it was unable to
find supporting authority for the Hannahs' position that
they could petition for custody on the ground that their son,
Ray, had consented to paternity.
the superior court dismissed the request for emergency and
temporary custody. This appeal by the Hannahs
Hannahs argue that the superior court erred by concluding
that they lacked standing as L. R.'s paternal
grandparents to bring an action for custody when Ray never
legitimated L. R. We agree.
OCGA § 19-7-1 (b.1),
in any action involving the custody of a child between the
parents or either parent and a third party limited to
grandparent, great-grandparent, aunt, uncle, great
aunt, great uncle, sibling, or adoptive parent, parental
power may be lost by the parent, parents, or any other person
if the court hearing the issue of custody, in the exercise of
its sound discretion and taking into consideration all the
circumstances of the case, determines that an award of
custody to such third party is for the best interest of the
child or children and will best promote their welfare and
Hannahs argue that they have standing to petition for custody
under OCGA § 19-7-1 (b.1) as paternal grandparents, and
that the superior court erred in concluding otherwise.
the superior court concluded that this case differs from
Reeves v. Hayes,  upon which the Hannahs rely, because in
Reeves, "the biological father died and no
longer could file for legitimation," whereas L. R.'s
father is still alive and could file for legitimation.
Although the superior court is correct that these facts
differ, it incorrectly determined that a father's ability
to legitimate a child has any impact on his
parents' standing to petition for custody under
OCGA § 19-7-1 (b.1) as grandparents.
Reeves, we held that although the child's father
had not legitimated the child, and there was no possibility
he could do so because he was deceased, "no authority
limit[s] a grandparent's standing to challenge custody to
circumstances [in which] the father has legitimated the
child[.]" We further noted that OCGA § 9-7-3
(a) (2) defines "grandparent" as "the parent
of a parent of a minor child, the parent of a minor
child's parent who has died, and the parent of a minor
child's parent whose parental rights have been
terminated." Thus, although this definition is
"limited to this Code section ...