                               FOURTH DIVISION
                                 BARNES, P. J.,
                             RAY and MCMILLIAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                  September 24, 2015




In the Court of Appeals of Georgia
 A15A1244. VINCENT v. VINCENT.

      MCMILLIAN, Judge.

      Appellants Harvey Vincent and Annie Nell Vincent (collectively

“grandparents”) filed a petition seeking, among other things, visitation rights to their

minor grandchildren, who are their son’s biological children. The children’s mother,

who had been granted a divorce from the father after he was incarcerated, opposed

the petition. Following a hearing, the trial court denied the grandparents’ request for

visitation under the standard set out in OCGA § 19-7-3 (c). The grandparents appeal,

asserting, inter alia, that the trial court applied the wrong legal standard, made certain

erroneous factual findings or failed to made certain findings, and failed to rule on

their request for notification of the children’s public performances under OCGA § 19-
7-3 (g). For the reasons that follow, we vacate the trial court’s order and remand the

case with direction.

      1. We first consider whether the trial court applied the wrong legal standard in

declining to award the grandparents visitation. Generally, grandparent visitation is

governed by OCGA § 19-7-3 commonly referred to as the Grandparent Visitation

Statute. As we have previously explained, 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.


(Citation omitted.) Keith v. Callahan, 332 Ga. App. 291, 293 (1) (772 SE2d 386)

(2015).

      In denying the grandparents’ request for visitation, the trial court relied solely

on subsection (c) of the statute, which in part provides that “the court may grant any

grandparent of the child reasonable visitation rights if the court finds 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).

However, the legislature amended OCGA § 19-7-3 in 2012 to add subsection (d),

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which sets out a different standard when the parent of the minor child with whom

visitation is sought is incapacitated, incarcerated or deceased, and the grandparent

seeking visitation is the parent of such incarcerated, incapacitated or deceased parent.

Ga. L. 2012, p. 860, § 1. Thus, under that section,

      [n]otwithstanding 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.


(Emphasis supplied.) OCGA § 19-7-3 (d). As we have recently explained, “[q]uite

explicitly, the language italicized above eliminates the provisions of subsections (b)

and (c) from impeding an award of reasonable visitation to individuals particularly

designated by subsection (d).” Fielder v. Johnson, ___ Ga. App. ___ (773 SE2d 831)

(2015).

      Because the grandparents’ son was incarcerated, the trial court should have

applied the “best interests” standard set out in subsection (d) instead of the less


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favorable “harmed unless such visitation is granted” standard set out in subsection

(c). See Beloate v. Peden, 328 Ga. App. 64, 67 (1) (761 SE2d 487) (2014) (because

the mother of the children was deceased, the “more pertinent standard governing” the

maternal grandparent’s visitation request is set forth in subsection (d) of [OCGA §

19-7-3]). Accordingly, the trial court’s order must be vacated and the case must be

remanded to allow the trial court to conduct further proceedings and enter a new order

in accordance with the standard set forth in OCGA § 19-7-3 (d).1 Further, the parties

shall have the right to file a notice of appeal within 30 days of the entry of any

adverse final order.

      2. The grandparents also argue that the trial court erred by assigning more

weight to the opinion of the mother than was permissible. However, we need not

decide this issue, which also must be revisited and a new ruling issued upon remand

in accordance with OCGA § 19-7-3 (d). Compare OCGA § 19-7-3 (c) (3) with OCGA

§ 19-7-3 (d).


      1
        Although the mother argues that the trial court did in fact find that visitation
was not in the “best interest and welfare of the minor children,” it is clear from the
trial court’s order as a whole that the visitation issue was decided based on the
considerations set forth in OCGA § 19-7-3 (c) and that remand for further
proceedings and entry of a proper order is required.


                                           4
      3. The grandparents challenge certain factual findings and conclusions made

by the trial court and also argue that the trial court failed to make certain findings

necessary to support its conclusions. However, because we have vacated that order

and directed the trial court to conduct further proceedings and enter a new order

applying a different standard, we need not examine the prior order for factual error

or omission.

      4. Lastly, the grandparents argue that the trial court erred by failing to rule on

their request for notification of the children’s public performances, which may be

granted under OCGA § 19-7-3 (g), whether or not visitation is awarded to a

grandparent. The record reflects that the grandparents’ petition contained a request

for such notification, and that the trial court’s order did not include a ruling on their

request. Accordingly, the trial court is hereby directed to rule on the grandparents’

request under OCGA § 19-7-3 (g) upon remand.

      Judgment vacated and case remanded with direction. Barnes, P. J., concurs.

Ray, J., concurs in judgment only.




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 A15A1244. VINCENT v. VINCENT.

      RAY, Judge, concurring in judgment only.

      I join the opinion of the majority in judgment only. I have no quarrel with the

analysis included therein. However, I believe that the amendments to the Grandparent

Visitation Statute enacted in 2012, particularly OCGA § 19-7-3 (d), which gives the

right to the trial court to award visitation to grandparents over the custodial parent’s

objection without finding that the child would be harmed without visitation, may well

be unconstitutional.1 Indeed, our Supreme Court found the Grandparent Visitation

Statute in effect in 1995 to be unconstitutional when it did not include such a

threshold finding by the trial court. Brooks v. Parkerson, 265 Ga. 189 (454 SE2d 769)

(1995). However, given that it is not the role of this Court to make such a finding


      1
         By no means do I intend to imply that I am hostile to grandparent visitation.
My children have benefitted significantly by having the robust presence in their lives
of their grandparents. As I will in the next decade likely join the grandparents’ club,
I certainly hope to enjoy access to my grandchildren.
since consideration of the constitutionality of statutes is reserved exclusively to our

Supreme Court, I join in the results reached by the majority herein. Certainly, our

Supreme Court is likely to consider the constitutionality of this amendment to the

Grandparent Visitation Statute in the near future, whether it is in this case or in a

similar action.




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