CourtListener 10679767

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NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.

In the Supreme Court of Georgia

Decided: December 20, 2022

S22A1075. BARNHILL et al. v. ALFORD

LAGRUA, Justice.

In this appeal, we have been asked to decide whether a

grandmother’s action for visitation rights to her biological

granddaughter (the minor child of her deceased daughter) under

OCGA § 19-7-3—commonly known as the grandparent visitation

statute—was precluded by the adoption of the child by her

stepmother, and whether certain subsections of the grandparent

visitation statute are unconstitutional, among other issues. For the

reasons that follow, we conclude that (1) the grandmother was

authorized to pursue an action for visitation rights to her

granddaughter despite the adoption, and (2) with respect to the

constitutional challenges, this Court needs only to consider the

constitutionality of one of the three subsections at issue—which we
hold to be constitutional. Accordingly, we affirm the trial court’s

rulings.

1. Facts

The minor child at issue (the “Child”) was born out of wedlock

to Lisa Hush (“Hush”) in 2013. In 2014, Appellant Michael Barnhill

(“Barnhill”) filed a paternity action in the Superior Court of

Cherokee County, seeking to establish his paternity as the biological

father of the Child under OCGA § 19-7-43.1 Legitimation, custody,

visitation, and child support were then established by the court with

respect to the Child, and Hush was designated as the primary

physical custodian of the Child. 2

From the time of the Child’s birth in 2013, Hush and the Child

lived with Appellee Cathy A. Alford (“Alford”)—Hush’s biological

mother and the Child’s biological grandmother—in Alford’s home,

and Alford assisted Hush in providing for the needs of the Child.

—————————————————————
1 Pursuant to OCGA § 19-7-43 (a) (5), “[a] petition to establish the
paternity of a child may be brought by . . . [o]ne who is alleged to be the father.”
2 Hush and Barnhill were never married.

2
Hush passed away on March 10, 2018, and following her death, the

Child went to live with Barnhill and his wife, Appellant Katheryn

A. Barnhill (“Katheryn”).

Two months later, on May 22, 2018, Alford filed the underlying

petition for grandparent visitation, seeking visitation rights to the

Child pursuant to OCGA § 19-7-3.3 In Alford’s petition, she alleged

that, after Hush passed away and Barnhill took custody of the Child,

Barnhill allowed Alford only “limited and sporadic visitation” with

the Child—despite the fact that the Child lived with Alford in her

home for the “entire course of [the Child’s] life”—and required any

visits between Alford and the Child to be supervised by Barnhill

and/or Katheryn. Several months after Alford initiated the

grandparent visitation action, Katheryn filed a petition for adoption

—————————————————————
3 Under OCGA § 19-7-3 (b) (1) (A), “[a]ny grandparent shall have the
right to file an original action for visitation rights to a minor child.” The statute
defines “[g]randparent” as “the parent of a parent of a minor child” or “the
parent of a minor child’s parent who has died.” OCGA § 19-7-3 (a) (2).
3
of the Child, which was finalized on February 11, 2019, without

providing notice to Alford or the trial court. 4

In October 2019, Barnhill moved to dismiss Alford’s petition for

grandparent visitation, arguing that Katheryn’s adoption severed

all legal ties between Alford and the Child under OCGA § 19-8-195

and that Alford had “no standing” to prosecute her action for

grandparent visitation under OCGA § 19-7-3 (b) (2).6 Barnhill also

moved to dismiss Alford’s petition on the theory that the petition

was prematurely filed in violation of OCGA § 19-7-3 (c) (2)7 because

another custody action between Hush and Barnhill was pending.

—————————————————————
4 On November 5, 2019, Katheryn moved to be added as a party-
defendant to the grandparent visitation action due to her adoption of the Child.
The motion was granted on November 19, 2019.
5 Pursuant to OCGA § 19-8-19, “a decree of adoption shall terminate all

legal relationships between the adopted individual and his or her relatives,
including his or her parent, so that the adopted individual thereafter shall be
a stranger to his or her former relatives for all purposes.”
6 OCGA § 19-7-3 (b) (2) provides that “[t]his subsection shall not

authorize an original action when the parents of the minor child are not
separated and the child is living with both parents.”
7 Under OCGA § 19-7-3 (c) (2), “[a]n original action requesting visitation

rights shall not be filed by any grandparent more than once during any two-
year period and shall not be filed during any year in which another custody
action has been filed concerning the child.”
4
Following a hearing on the motion to dismiss in December 2019, the

trial court denied Barnhill’s motion.

The trial court scheduled a final hearing on Alford’s petition for

grandparent visitation on March 16, 2021. One week before the

scheduled hearing, the Barnhills filed a “Motion to Declare OCGA

§ 19-7-3 (c) (1), (c) (3), and (c) (5) Unconstitutional.”

In their motion, the Barnhills asserted, among other claims,

that OCGA § 19-7-3 (c) (1), (c) (3), and (c) (5) are unconstitutional

because these subsections (1) fail to give paramount import to the

child’s best interests; (2) create presumptions in favor of family

member visitation if the child has a preexisting relationship with

the family member; (3) violate the constitutional protections parents

are afforded to raise their children with no interference from the

State; and (4) strip the trial court of its ability to determine whether

a visitation schedule is in the best interests of the child.

At the final evidentiary hearing held March 16 to 18, 2021, the

trial court allowed the parties to present oral argument on the

5
Barnhills’ motion. On March 31, 2021, the trial court issued a final

order granting Alford’s petition for grandparent visitation. On the

same date, the trial court issued an order denying the Barnhills’

motion to declare OCGA § 19-7-3 (c) (1), (c) (3), and (c) (5)

unconstitutional.

In denying the Barnhills’ motion, the trial court summarily

concluded that

[b]ecause all presumptions are in favor of the
constitutionality of a statute, the burden is on the party
claiming that the law is unconstitutional to prove it.
Under this framework, this Court finds that OCGA § 19-
7-3 is not unconstitutional as applied to this case because:
(A) subsection (c) (1) does not create a presumption of
harm against a parent’s rights; (B) subsection (c) (3) does
not divest this Court of authority to make a determination
in the best interests of the child; and (C) subsection (c) (5)
is not implicated in this Court’s decision, but even if it
were, it is severable from the statute.

(Citation and punctuation omitted.)

Specifically, with respect to OCGA § 19-7-3 (c) (1), 8 the trial

court determined that this subsection

—————————————————————
8 OCGA § 19-7-3 (c) (1) provides:
6
does not create any presumption of harm or any
presumption of custody determination in favor of any
party [because] the statute provides the Court with the
discretion to award custody to a child’s family member
where there is clear and convincing evidence that the
health and welfare of the child would be harmed unless
visitation is granted and the best interests of the child
would be served by that visitation.

—————————————————————
Upon the filing of an original action or upon intervention in an
existing proceeding under subsection (b) of this Code section, 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.
7
(Emphasis in original.) The trial court also noted that the factors

set forth in OCGA § 19-7-3 (c) (1) (A) to (D) were to be considered by

the court “in making that determination,” but did not “impose any

presumption of harm or presumption in favor of the family member

seeking custody.” (Emphasis in original.) The trial court concluded

that, because Alford had to “prove by clear and convincing evidence

that there would be harm to the child without visitation and that

such visitation is in the child’s best interest,” OCGA § 19-7-3 (c) (1)

“does not contain any implication of a presumption of harm.”

(Emphasis in original.)

As to OCGA § 19-7-3 (c) (3),9 the trial court explained that this

subsection “does not unconstitutionally interfere with the parent-

—————————————————————
9 OCGA § 19-7-3 (c) (3) provides:
While 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.
8
child relationship” because the “rebuttable presumption” in this

subsection “is not automatic,” and the provision “remains

subservient to the clear and convincing evidence standard imposed

by subsection (c) (1).” In other words, OCGA § 19-7-3 (c) (3) does not

displace the requirement in OCGA § 19-7-3 (c) (1) that “the court

find[] 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.”

OCGA § 19-7-3 (c) (1).

Additionally, in the trial court’s final order awarding

grandparent visitation rights to Alford, the trial court held that—

“even without the rebuttable presumption” in subsection (c) (3)—

Alford “met her burden” pursuant to OCGA § 19-7-3 (c) (1) because

“there is clear and convincing evidence that the Child would suffer

actual emotional harm unless visitation [with Alford] is granted,”

and “it is in the best interests of the Child that visitation be

granted.”

9
Finally, as to OCGA § 19-7-3 (c) (5), 10 the trial court noted that,

because the court determined it was in the best interests of the Child

to have more than 24 hours of visitation per month with Alford—

i.e., more than the statutory minimum—the court did not need to

rule on the constitutionality of the minimum imposed by (c) (5).

The Barnhills appealed the trial court’s rulings to the Court of

Appeals, and the Court of Appeals transferred the case to this Court

on May 27, 2022, noting that this Court has exclusive jurisdiction

over all cases involving construction of the Constitution of the State

of Georgia and of the United States and all cases in which the

constitutionality of a law, ordinance, or constitutional provision has

been called into questions. See Atlanta Ind. School Sys. v. Lane, 266

Ga. 657, 657 (1) (469 SE2d 22) (1996).

—————————————————————
10OCGA § 19-7-3 (c) (5) provides:
Visitation time awarded to a family member shall not be less than
24 hours in any one-month period; provided, however, that when
more than one individual seeks visitation under this Code section,
the court shall determine the amount of time to award to each
petitioner which shall not be less than 24 hours in any one-month
period in the aggregate.
10
2. Analysis

(a) Barnhill’s Motion to Dismiss

On appeal, the Barnhills contend that the trial court erred in

denying Barnhill’s motion to dismiss because Alford had no standing

to bring and prosecute this grandparent visitation action under

OCGA § 19-7-3 (b) (2) and because she filed the action prematurely

in violation of OCGA § 19-7-3 (c) (2). We address each of these

arguments in turn.

(i) Standing

As an initial matter, we conclude that, although the Barnhills

argue that Alford had “no standing” to prosecute this action, Alford’s

standing is not really at issue in this case. Unquestionably, at the

time Alford filed her petition for grandparent visitation rights in

May 2018, she had standing to do so as the “parent of a minor child’s

parent who has died.” OCGA § 19-7-3 (a) (2).

The Barnhills’ real position—as suggested by their arguments

and the law cited in support thereof—is that Katheryn’s subsequent

11
adoption of the Child prohibited Alford from continuing to seek

visitation rights to the Child and “mooted” Alford’s petition.

Regardless of how they frame it, however, the Barnhills’ arguments

fail.

The Barnhills argue that Alford’s action is precluded by OCGA

§ 19-7-3 (b) (2) (“This subsection shall not authorize an original

action when the parents of the minor child are not separated and

the child is living with both parents.”). Specifically, the Barnhills

argue that, because they have not been separated (at least since

February 2019 when Katheryn adopted the Child) and the Child has

lived with them continuously, Alford’s action is not permitted. See

Kunz v. Bailey, 290 Ga. 361, 362 (720 SE2d 634) (2012) (holding that

“by virtue of the limiting language in the last sentence of OCGA §

19-7-3 (b), grandparents may only file an original action for

visitation when the parents are separated and the child is not living

with both parents” (emphasis in original)).

12
The Barnhills also argue that, after Katheryn initiated the

adoption proceedings, Alford’s only avenue for obtaining visitation

rights to the Child was by intervening in the adoption action

pursuant to OCGA § 19-7-3 (b) (1) (B) (“[a]ny family member shall

have the right to intervene in and seek to obtain visitation rights . .

. whenever there has been an adoption in which the adopted child

has been adopted by . . . a stepparent, notwithstanding the

provisions of Code Section 19-8-19), but Alford did not do so. And,

thus, as soon as the adoption was finalized, Katheryn became the

legal mother of the Child and Alford became a legal stranger to the

Child as a matter of law. See OCGA § 19-8-19 (a) (1) (“[A] decree of

adoption shall terminate all legal relationships between the adopted

individual and his or her relatives . . . so that the adopted individual

thereafter shall be a stranger to his or her former relatives for all

purposes[.]”).

With respect to the first argument, the Barnhills only address

Alford’s authorization—or lack thereof—to pursue this action for

13
visitation rights under the framework of OCGA § 19-7-3 (b).

Notably, however, in Alford’s response to Barnhill’s motion to

dismiss in the trial court, Alford questioned Barnhill’s reliance on

OCGA § 19-7-3 (b) and on Kunz, 290 Ga. at 362, and responded that

she was authorized to seek visitation rights to the Child under

OCGA § 19-7-3 (d), relying on Fielder v. Johnson, 333 Ga. App. 659

(773 SE2d 831) (2015) (addressing Kunz in light of the addition of

subsection (d) to the statute).11 And, in denying Barnhill’s motion

to dismiss, the trial court adopted the reasoning set forth in Alford’s

response brief and explicitly held that Alford was authorized to

—————————————————————
11 In 2012, several months after this Court issued its decision in Kunz,
the General Assembly amended OCGA § 19-7-3 by, among other things, adding
subsection (d), which then provided:
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.
Ga. L. 2012, Act 702, § 1. After the issuance of the Fielder decision in 2015,
OCGA § 19-7-3 was amended again by the General Assembly, effective July 1,
2022, to expand upon the language in subsection (d). See Ga. L. 2022, Act 866,
§ 1.
14
pursue this action under Fielder, 333 Ga. App. at 662-663

(concluding that biological grandparents were permitted by OCGA §

19-7-3 (d) to seek visitation rights to their grandchild—the child of

their deceased daughter—after the stepmother’s adoption of the

child despite the language of OCGA § 19-7-3 (b) (2) and OCGA § 19-

8-19).12 On appeal, the Barnhills have not argued that Alford is not

permitted to pursue this action under OCGA § 19-7-3 (d), nor have

they addressed, much less challenged, the trial court’s decision

based on Fielder.

With respect to the Barnhills’ second argument—that Alford

failed to intervene and seek visitation rights in the adoption action

under OCGA § 19-7-3 (b) (1) (B)—this argument is disingenuous

—————————————————————
12 In the order, the trial court also observed that Katheryn filed and
finalized her petition for adoption of the Child without giving notice to the
court—in “a clear violation” of § 19-9-69 (d) (providing that parties have a
“continuing duty to inform the Court of any proceedings in this or any state
that could affect the current proceeding”). The trial court admonished the
Barnhills for (1) engaging in “what can be termed a ‘secret adoption’” in
disregard of the fact that the Child “lost her mother at a very early age,” and
(2) denying the court “legally required notice of actions directly impacting the
life of the [C]hild,” for which “[n]o remedy is provided.” Many of us are likewise
concerned by this clear violation.
15
given that the Barnhills failed to disclose Katheryn’s adoption of the

Child to Alford until after the adoption was finalized, depriving her

of the opportunity to intervene in that action under OCGA § 19-7-3

(b) (1) (B).13 Ultimately, however, the Barnhills’ failure to provide

Alford with notice of the adoption proceeding—while inexcusable—

was not legally dispositive because the trial court found that Alford

was authorized to pursue this action under OCGA § 19-7-3 (d) and

Fielder, and the Barnhills have not challenged that ruling on appeal.

(ii) The Timing of Alford’s Petition for Grandparent Visitation

The Barnhills also assert on appeal that Alford prematurely

filed her action for grandparent visitation in violation of OCGA § 19-

7-3 (c) (2) and that the trial court should have dismissed Alford’s

petition on this additional basis. We disagree.

OCGA § 19-7-3 (c) (2) provides, in pertinent part, that “an

original action requesting visitation rights shall not be filed by any

—————————————————————
13 Additionally, when this Court inquired during oral argument about
why the adoption was not disclosed to Alford, the Barnhills claimed attorney-
client privilege.
16
grandparent . . . during any year in which another custody action

has been filed concerning the child.”

The record reflects that, in May 2016, Barnhill filed an action

for change of custody of the Child in the Superior Court of Cherokee

County, Michael Barnhill v. Lisa Hush, Civil Action File No.

16CV0943B (the “custody action”). On December 6, 2017, a

“Consent Final Parenting Plan” concerning the Child was entered in

the custody action, with Hush remaining as the primary physical

custodian of the Child. On May 22, 2018—following the death of

Hush in March 2018—Alford filed her petition for grandparent

visitation. Barnhill argues that Alford should have waited until

December 6, 2018—one year from the date the Consent Final

Parenting Plan was entered in the custody action—to file her action

for grandparent visitation, and that by filing it in May 2018—less

than a year later—Alford violated OCGA § 19-7-3 (c) (2).

Under the plain language of OCGA § 19-7-3 (c) (2), the date

upon which the clock starts to run for purposes of filing a

17
grandparent visitation action is the date the custody action was

filed—i.e., May 2016—not the date the corresponding final order was

entered—i.e. December 2017. Accordingly, Alford’s petition was

timely, and this contention is without merit.

(b) The Barnhills’ Constitutional Challenges to OCGA § 19-7-3
(c) (1), (c) (3), and (c) (5)

The Barnhills also assert on appeal that the trial court erred

in declining to declare OCGA § 19-7-3 (c) (1), (c) (3), and (c) (5)

unconstitutional. In addressing the constitutionality of OCGA § 19-

7-3 (c) (1), (c) (3), and (c) (5), we recognize that

every reasonable construction must be resorted to[] in
order to save a statute from unconstitutionality. This
approach not only reflects the prudential concern that
constitutional issues not be needlessly confronted, but
also recognizes that the legislature, like this Court, is
bound by and swears an oath to uphold the Constitution.
The courts will therefore not lightly assume that the
legislature intended to infringe constitutionally protected
liberties or usurp power constitutionally forbidden it.

In Re M.F., 298 Ga. 138, 146 (2) (780 SE2d 291) (2015). Therefore,

all presumptions are in favor of the constitutionality of an
Act of the legislature and [] before an Act of the legislature
can be declared unconstitutional, the conflict between it

18
and the fundamental law must be clear and palpable and
this Court must be clearly satisfied of its
unconstitutionality. Moreover, because statutes are
presumed to be constitutional until the contrary appears,
the burden is on the party alleging a statute to be
unconstitutional to prove it.

JIG Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488,

490 (712 SE2d 820) (2011) (citation and punctuation omitted). “[W]e

afford the statutory text its plain and ordinary meaning, viewing the

statutory text in the context in which it appears, and reading the

statutory text in its most natural and reasonable way, as an

ordinary speaker of the English language would.” Bell v. Hargrove,

313 Ga. 30, 32 (2) (867 SE2d 101) (2021) (citation and punctuation

omitted).

As discussed above, in the Barnhills’ motion attacking the

constitutionality of OCGA § 19-7-3 (c) (1), (c) (3), and (c) (5), the

Barnhills argue that these subsections are unconstitutional on their

face because they: (1) ignore the best interests of the child; (2) violate

the fundamental right of parents to make decisions concerning the

care, custody, and control of their children; and (3) infringe upon the

19
presumption that fit parents will act in the best interests of their

children by creating presumptions in favor of a family member’s

visitation.

Specifically, with respect to OCGA § 19-7-3 (c) (1), the Barnhills

argue that the reasonable harm factors in this subsection create

presumptions in favor of family member visitation if the child has a

preexisting relationship with the family member, which violates the

constitutional protections parents are afforded with the ability to

raise their children with no interference from the State, citing Davis

v. Cicala, 356 Ga. App. 873, 880-881 (849 SE2d 728) (2020) (Coomer,

J., concurring), and Troxel v. Granville, 530 U.S. 57, 66-68 (120 SCt

2054, 147 LE2d 49) (2000) (holding that “there is a presumption that

fit parents act in the best interests of their children”). The Barnhills

assert that the concurring judge in that case correctly concluded in

Davis that “OCGA § 19-7-3 unconstitutionally infringes on [the]

parental right [to the custody and control of one’s child] because it

creates a rebuttable presumption in favor of family members’

20
visitation rights that must be overcome by parents.” Davis, 356 Ga.

App. at 878 (Coomer, J., concurring). The Barnhills contend that,

because OCGA § 19-7-3 (c) (1) creates a presumption in favor of

family member visitation that directly contravenes the presumption

that fit parents will act in the best interests of their children, this

subsection is unconstitutional. We disagree.

OCGA § 19-7-3 (c) (1) provides in pertinent part that

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;

21
(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 plain language of this subsection does not create a

presumption in favor of family member visitation, but places the

burden of proof upon the family member seeking visitation rights

and requires the trial court to use its discretion to award visitation

to a child’s family member only where there is “clear and convincing

evidence” that the health and welfare of the child would be harmed

without visitation and the best interests of the child would be served

by that visitation. OCGA § 19-7-3 (c) (1). And, through subsections

(A) to (D), the statute provides factors that the trial court “shall

consider” in making that determination. See id. However, the

statute does not provide that any one of these four factors is

sufficient by itself—these are simply factors to be considered by the

22
trial court in making a holistic assessment of whether family

member visitation is in the best interest of the child.

Moreover, as addressed in more detail below, in awarding

visitation rights to Alford under OCGA § 19-7-3 (c) (1), the trial court

determined that Alford met her burden to prove—by clear and

convincing evidence—that there would be harm to the Child without

visitation with Alford and that such visitation was in the Child’s

best interest. Accordingly, we conclude that OCGA § 19-7-3 (c) (1)

is not unconstitutional on its face, and as applied in this case, it also

does not unconstitutionally interfere with the parent-child

relationship.

As to OCGA § 19-7-3 (c) (3), the Barnhills argue that subsection

family member visitation is in the best interests of a child, shifting

the burden to parents to rebut that presumption and prove that

their decision to withhold a grandparent’s visitation is the correct

decision for the child. As to OCGA § 19-7-3 (c) (5), the Barnhills

23
argue that this subsection unconstitutionally requires a minimum

of 24 hours for grandparent visitation, without considering what

would be in the best interest of the child. We conclude that these

subsections have not been implicated in this case in light of the trial

court’s rulings on Alford’s petition for grandparent visitation and the

Barnhills’ motion to declare the corresponding statute

unconstitutional.

Subsection (c) (3) 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.

OCGA § 19-7-3 (c) (3). Subsection (c) (5) states that

[v]isitation time awarded to a family member shall not be
less than 24 hours in any one-month period; provided,
however, that when more than one individual seeks

24
visitation under this Code section, the court shall
determine the amount of time to award to each petitioner
which shall not be less than 24 hours in any one-month
period in the aggregate.

OCGA § 19-7-3 (c) (5).

In awarding grandparent visitation rights to Alford, the trial

court did not rely upon or even apply the presumption allowed by

OCGA § 19-7-3 (c) (3) but, instead, concluded that Alford met her

burden to show by “clear and convincing evidence” that the Child

would be harmed without visitation and that visitation was in the

Child’s best interest under OCGA § 19-7-3 (c) (1). Additionally, the

trial court unequivocally withheld ruling on the constitutionality of

OCGA § 19-7-3 (c) (5), observing that this subsection was “not

implicated in this Court’s decision” because the trial court was

granting Alford more than the 24-hour minimum mandated by (c)

(5).

Therefore, because the trial court did not rely upon subsection

rule upon the constitutionality of (c) (5), we do not consider the

25
Barnhills’ constitutional challenges to OCGA § 19-7-3 (c) (3) and (c)

(5).

The Barnhills also contend on appeal that, notwithstanding

the unconstitutionality of OCGA § 19-7-3 (c) (1), the trial court

abused its discretion by concluding that Alford met her burden

under OCGA § 19-7-3 (c) (1). In support of this contention, the

Barnhills assert that, based upon the facts and evidence presented

at trial, the trial court could not have reasonably found that Alford

met her burden to show—by clear and convincing evidence—that

the health and welfare of the Child would be harmed unless

visitation with Alford was granted and that the best interests of the

child would be served by such visitation. See OCGA § 19-7-3 (c) (1).

We observe at the outset that, although the trial court

concluded that Alford was authorized to pursue this action under

OCGA § 19-7-3 (d), the trial court did not apply that subsection in

determining that Alford was entitled to an award of grandparent

26
visitation rights—applying subsection (c) (1) instead. However, any

error in the trial court’s application of (c) (1)—as opposed to (d)—

was harmless because a finding that Alford was entitled to an award

of grandparent visitation rights under the stricter standard set forth

in subsection (c) (1) necessarily means she would have also been

entitled to an award of grandparent visitation rights under

subsection (d). That is because the standard of subsection (d) is

encompassed by subsection (c) and incorporated into the same

statute as one cause of action. And, while the version of subsection

(d) in effect at the time the trial court awarded visitation to Alford,

see Ga. L. 2012, Act 702, § 1, was declared unconstitutional by this

Court in Patten v. Ardis, 304 Ga. 140, 145 (3) (816 SE2d 633) (2018),

subsection (c) (1)—as we have already concluded—is constitutional,

and that is the standard the trial court applied here. Thus, there

was no harm in the trial court’s application of OCGA § 19-7-3 (c) (1)

in this case.

27
“The decision to grant or deny a grandparent’s petition for

visitation is within the discretion of the trial court, and we will

affirm the court’s decision absent an abuse of that discretion.” In re

L.R.M., 333 Ga. App. 1, 4 (775 SE2d 254) (2015). “Where there is

any evidence to support the trial court’s ruling, a reviewing court

cannot say there was an abuse of discretion.” Vines v. Vines, 292 Ga.

550, 552 (2) (739 SE2d 374) (2013). See also McFarlane v.

McFarlane, 298 Ga. 361, 361 (1) (782 SE2d 29) (2016) (holding that

“[a] trial court’s decision regarding a modification of custody will be

upheld on appeal in the absence of a clear abuse of discretion, and

where there is any evidence to support the trial court’s decision, this

Court cannot say there was an abuse of discretion” (citation and

punctuation omitted)).

During the three-day final evidentiary hearing on Alford’s

petition for grandparent visitation, substantial evidence was

presented to support Alford’s claim for grandparent visitation,

including testimony from the parties, the parties’ experts, the

28
Child’s therapist, and the Family Coordinator. After the hearing,

the trial court concluded that all of the factors required by OCGA §

19-7-3 (c) (1) have been met in this case and that the evidence and

testimony presented established the following: (1) the Child resided

with Alford for more than four years; (2) Alford provided parental

care, nurturing, and supervision of the Child; (3) Alford provided

financial support for the basic needs of the Child for more than one

year; and (4) the Child would suffer emotional injury that was

harmful to her health if visitation with Alford was not granted, given

the preexisting relationship established between Alford and the

Child. See OCGA § 19-7-3 (c) (1) (A)-(D). The trial court thus held

that Alford “met her burden” pursuant to OCGA § 19-7-3 (c) (1) and

that “[i]t is in the best interests of the Child that [Alford] have

visitation with the Child to ensure the Child’s emotional and

psychological development and well-being.”

Based on the evidence presented, as well as the trial court’s

consideration of the Child’s best interest and its finding that Alford

29
met her burden of proof in this case, we cannot say “there was a clear

abuse of discretion” in the trial court’s granting of the petition for

grandparent visitation rights. Vines, 292 Ga. at 552 (2).

Accordingly, under the any evidence standard, we find that the trial

court did not abuse its discretion in awarding visitation time

between Alford and the Child, and we affirm the trial court’s ruling

in this case. 14 See In re L.R.M., 333 Ga. App. at 4-5.

Judgment affirmed. All the Justices concur.

—————————————————————
14 In the trial court’s order awarding grandparent visitation rights to
Alford, an apparent scrivener’s error appears in the section pertaining to
Alford’s summer visitation time with the Child—namely, the corresponding
paragraph includes interchangeable references to a “seven (7) day summer
vacation period” and a “ten (10) day period.” Nothing about this Court’s
decision should prevent the trial court—once the remittitur has issued from
this Court—from revisiting its final order awarding grandparent visitation
rights in order to address this apparent scrivener’s error.
30
BETHEL, Justice, concurring specially.

While I am dubious that the ultimate holding of Fielder is

correct when it is considered alongside OCGA § 19-8-19 (a) (1), the

Barnhills did not challenge the portion of the trial court’s decision

finding standing as recognized in that case. Accordingly, I join the

opinion of the Court to the extent that it rests on the proposition

that the trial court found standing on a ground not challenged by

the Barnhills. I write separately to address what appears to have

been an intentional effort to abuse the judicial system and a

potential need for attention from the General Assembly.

Here, as explained more fully in the opinion of the Court, the

Child spent around the first four years of her life living with her

mother and grandmother, Cathy Alford. Following the trauma of the

death of her mother, the Child began living with her father and

stepmother. Alford petitioned for visitation in hopes of continuing

her relationship with her grandchild in light of the fact that her

interaction with the Child had become “limited and sporadic.”

31
Alford’s standing to maintain her petition was potentially

jeopardized when, during the pendency of the petition, the Child’s

stepmother initiated and completed an adoption of the Child without

providing notice to Alford or the court where Alford’s petition for

visitation was pending. See OCGA § 19-7-3 (b) (2). The adoption

decree resulted in the termination of the legal relationship between

Alford and the Child. See OCGA § 19-8-19.

Despite the legal, personal, and practical consequences flowing

from the adoption proceeding, the Barnhills failed to inform Alford

and the trial court of the filing, pendency, and finalization of the

adoption. Counsel for the Barnhills did not explain, in briefings or

at oral argument, why this failure occurred. Nevertheless, the

Barnhills argued that the adoption caused Alford to lose standing in

this case. As noted above, this argument failed, in my view, because

the Barnhills failed to challenge the trial court’s finding of standing

under Fielder. I am not certain of what the outcome of that analysis

would be had the issue been preserved.

32
It is difficult for me to fathom how anyone focused on the

interest of the Child would conduct themselves in this way. The

record contains no indication that Alford is anything other than a

loving and caring grandmother with whom the Child has developed

a healthy attachment. At the level of basic human relationships, a

biological father and soon-to-be adoptive mother who are placing a

child first simply must include a loving grandparent in the adoption

story of the child.

Moreover, to the extent that this maneuver was an intentional

effort to deceive the court hearing the petition for visitation, it is a

repugnant attempt to abuse the legal system. Meanwhile, to the

extent that counsel for the Barnhills was aware of a deceptive

strategy to mislead the court and gain advantage in litigation, trial

counsel may have violated the Georgia Rules of Professional

Conduct. See Rule 8.4 (a) (4) of the Georgia Rules of Professional

Conduct (“It shall be a violation of the Georgia Rules of Professional

Conduct for a lawyer to: . . . engage in professional conduct involving

33
dishonesty, fraud, deceit or misrepresentation. . . .”). Finally, to the

extent that a visitation petition may be considered a “child custody

proceeding,” as used in OCGA § 19-9-69, then the Barnhills may

have also violated state law. See OCGA § 19-9-69 (d) (“Each party

[in a child custody proceeding] has a continuing duty to inform the

court of any proceeding . . . that could affect the current

proceeding.”). But this case does not require us to reach those

questions, and we avoid deciding issues which are not necessary to

the case at hand. See Crenshaw v. Crenshaw, 267 Ga. 20, 20 (471

SE2d 845) (1996) (“[When] we are able to decide [a] case on a

narrower basis, we do not reach the broader issues.”). Regardless,

the Barnhills’s omissions are unacceptable and flagrantly

undermine both the Child’s interests and the integrity of the legal

process. I close with an invitation to the General Assembly to

consider the current state of our Code in light of the facts of this

case.

315 Ga. 304
FINAL COPY

S22A1075. BARNHILL et al. v. ALFORD.

LAGRUA, Justice.

In this appeal, we have been asked to decide whether a

grandmother’s action for visitation rights to her biological

granddaughter (the minor child of her deceased daughter) under

OCGA § 19-7-3 — commonly known as the grandparent visitation

statute — was precluded by the adoption of the child by her

stepmother, and whether certain paragraphs of the grandparent

visitation statute are unconstitutional, among other issues. For the

reasons that follow, we conclude that (1) the grandmother was

authorized to pursue an action for visitation rights to her

granddaughter despite the adoption, and (2) with respect to the

constitutional challenges, this Court needs only to consider the

constitutionality of one of the three paragraphs at issue — which we
hold to be constitutional. Accordingly, we affirm the trial court’s

rulings.

1. Facts

The minor child at issue (the “Child”) was born out of wedlock

to Lisa Hush (“Hush”) in 2013. In 2014, Appellant Michael Barnhill

(“Barnhill”) filed a paternity action in the Superior Court of

Cherokee County, seeking to establish his paternity as the biological

father of the Child under OCGA § 19-7-43.1 Legitimation, custody,

visitation, and child support were then established by the court with

respect to the Child, and Hush was designated as the primary

physical custodian of the Child.2

From the time of the Child’s birth in 2013, Hush and the Child

lived with Appellee Cathy A. Alford (“Alford”) — Hush’s biological

mother and the Child’s biological grandmother — in Alford’s home,

and Alford assisted Hush in providing for the needs of the Child.

2
Hush passed away on March 10, 2018, and following her death, the

Child went to live with Barnhill and his wife, Appellant Katheryn

A. Barnhill (“Katheryn”).

Two months later, on May 22, 2018, Alford filed the underlying

petition for grandparent visitation, seeking visitation rights to the

Child pursuant to OCGA § 19-7-3.3 In Alford’s petition, she alleged

that, after Hush passed away and Barnhill took custody of the Child,

Barnhill allowed Alford only “limited and sporadic visitation” with

the Child — despite the fact that the Child lived with Alford in her

home for the “entire course of [the Child’s] life” — and required any

visits between Alford and the Child to be supervised by Barnhill

and/or Katheryn. Several months after Alford initiated the

grandparent visitation action, Katheryn filed a petition for adoption

providing notice to Alford or the trial court.4