Beloate v. Peden

761 S.E.2d 487, 328 Ga. App. 64, 2014 Ga. App. LEXIS 470
CourtCourt of Appeals of Georgia
DecidedJuly 9, 2014
DocketA14A0240
StatusPublished
Cited by7 cases

This text of 761 S.E.2d 487 (Beloate v. Peden) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beloate v. Peden, 761 S.E.2d 487, 328 Ga. App. 64, 2014 Ga. App. LEXIS 470 (Ga. Ct. App. 2014).

Opinion

McFADDEN, Judge.

The maternal grandmother of minor child A. B. filed a petition seeking visitation rights with the child. After an evidentiary hearing, the trial court granted the petition and awarded grandparent visitation. The father of A. B. appeals, challenging the sufficiency of the [65]*65evidence supporting the grandparent visitation order and claiming that the trial court erred in requiring him to bear a portion of the cost of the court-appointed guardian ad litem. Because there is sufficient evidence from which a rational trier of fact could have found that the grandparent visitation was authorized, we affirm the trial court’s visitation ruling. With regard to the guardian ad litem fees, there were two rulings, one of which the father acquiesced in; however, he properly challenged the second request for such fees, and because the petitioning grandparent alone was required to bear the expense of the court-appointed guardian ad litem, we reverse that portion of the trial court’s ruling.

1. Sufficiency of the evidence.
On appeal from 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. 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.

Luke v. Luke, 280 Ga. App. 607, 609-610 (1) (634 SE2d 439) (2006) (citations omitted).

So viewed, the evidence shows that A. B. was born on December 11, 2001. By the time A. B. was approximately three years old, the unwed parents had ended their relationship, the mother was in a drug rehabilitation program, and the father and A. B. had moved into the paternal grandparents’ house. The mother later began a relationship with another man, and on May 5, 2008, gave birth to D. C., the half-brother of A. B. In the meantime, the father of A. B. had initiated a custody action, which resulted in a January 2009 consent order, pursuant to which the mother and father had joint legal custody of A. B., the father had sole physical custody, and the mother had visitation rights. According to the maternal grandmother, the father and his mother stopped allowing visitations, did not respond to telephone calls or letters, and thwarted various attempts to contact the child. On December 15, 2010, A. B.’s mother died of an accidental prescription drug overdose.

After the mother’s death, the maternal grandmother filed the underlying petition for visitation, claiming that she had not been allowed to visit with A. B. since the father had gained physical custody. It was stipulated at the hearing on the petition that A. B. had [66]*66recently begun seeing a counselor to address emotional issues regarding the loss of her mother, that the father wanted the maternal grandmother to be involved with the counseling, and that the maternal grandmother had agreed to do so. At the conclusion of the hearing, the guardian ad litem, who had been appointed to represent the child’s interests and to investigate the matter, confirmed that the father and his family had blocked telephone calls and had limited the maternal grandmother’s contact with the child. The guardian ad litem recommended that the court award visitation rights to the maternal grandmother, opining that the paternal grandmother does not like the maternal grandmother’s family, so “there won’t be one minute of visitation for them that you don’t order.”

In granting visitation rights to the maternal grandmother, the trial court found, among other things, that the father’s

delay in obtaining counseling for the minor child has caused continued problems in her grieving, and [her] having nightmares that have caused harm and ha[ve] been damaging to the minor child. The Court finds by clear and convincing evidence that the father is surrounded by family members who are not in any way encouraging him to facilitate and allow the minor child to have a relationship with the maternal grandmother and the child’s maternal extended family. The Court finds that the minor child would be harmed emotionally as she has been by not having a relationship with them and not being able to discuss that her mother has died, who her mother was, and looking at pictures of her maternal family. The Court finds that it would be in the best interest of the minor child to have visitation and a relationship with her maternal extended family.

OCGA § 19-7-3, which is commonly referred to as the Grandparent Visitation Statute,

was enacted 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.

Sheppard v. McCraney, 317 Ga. App. 91, 92 (730 SE2d 721) (2012) (citations and punctuation omitted).

[67]*67In challenging the sufficiency of the evidence in this case, the father relies on language set forth in subsection (c) of the statute, pertaining to physical or emotional harm being reasonably likely to result if visitation is not granted. See OCGA § 19-7-3 (c) (1) (D). However, regardless of whether or not the standard under that subsection was met, the father’s reliance on that language is misplaced because the more pertinent standard governing this case is set forth in subsection (d) of the statute, which provides:

Notwithstanding the provisions of subsections (b) and (c) of this Code section, if 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. The custodial parent’s judgment as to the best interests of the child regarding visitation shall be given deference by the court but shall not be conclusive.

OCGA § 19-7-3 (d).

Here, the mother of A. B. is deceased, and therefore the trial court was authorized to exercise its discretion and award visitation to the maternal grandparent based on a finding that such visitation would be in the best interests of the child. The trial court’s express finding that visitation is in A. B.’s best interests is supported, not only by the maternal grandmother’s testimony and the guardian ad litem’s recommendation, but by the father’s own testimony. He testified that A. B. loved her mother, that she has said she never really got a chance to know her mother, and that it is extremely important for her to learn about her mother and have nice memories of her. The father explained that he had asked the maternal grandmother to participate in A.

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Cite This Page — Counsel Stack

Bluebook (online)
761 S.E.2d 487, 328 Ga. App. 64, 2014 Ga. App. LEXIS 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beloate-v-peden-gactapp-2014.