Bailey v. Kunz, A10A1809

*All courts mentioned are at the state level.

• Appellants appeal from the denial of their motion to dismiss a petition filed by Appellees for grandparent visitation of the Appellants’ minor child.
• Appellant Carrie Jean Bailey was married to and conceived a child with the son of Appellees Robert and Royce Kunze.  While she was pregnant, the couple divorced.  Thereafter, she married another man, Appellant Douglas Bailey.
• In 2006, the biological father of the minor child surrendered his parental rights, and Douglas Bailey adopted the child.
• In October 2009, after a dispute arose over ongoing grandparent visitation, the Kunzes filed a petition for the visitation of the minor child.
• The Baileys moved to dismiss the petition because of the adoption and the biological father’s surrender of his parental rights, contending that such a petition was not authorized because the Baileys were the legal parents and lived together with the minor child.
• Pursuant to OCGA § 19-7-3(b), a grandparent does not have the right to file an original action for visitation rights where the parents of the minor child are not separated and the child is living with both parents.
• The Baileys argue that the trial court erred by not treating Douglas as a “parent” for purposes of the language above.
• The core question on appeal is whether Douglas is a “parent” within the meaning of the limiting language in the statute, or whether the term is limited to “natural” or “biological” parents.
• Although the word “parent” is undefined in OCGA § 19-7-3, the adoption statute   (OCGA § 19-8-18) defines the word parent to include the “legal father” of a child.  As stated in OCGA § 19-8-18, an adopted child is “a stranger to his former relatives for all purposes, including…interpretation or construction of…statutes.”
• The Court of Appeals declined to ignore the adoption statute’s definition of parent in construing OCGA § 19-7-3, and held that the limiting language of the statute – forbidding original actions for grandparent visitation if the parents are together and living with the child – includes adoptive parents.  Thus, the trial court erred by interpreting the word “parent” to include only biological parents.
• Therefore, the Appellees’ original petition was not authorized, and the trial court’s denial of the motion to dismiss is reversed.

Attorneys:

• Jonathan R. Levine for appellant
• Paul J. Coburn for appellant
• Jennifer McLeod for appellee

Trial Court:

Douglas Superior Court; Judge Robert J. James