ASK THE BARRISTER: How on Earth Does One Prove a Hypothetical?

Dear Barrister:
I have a client, a grandmother, who has been denied access to her grandchildren by her daughter-in-law. The children’s father is serving time outside the state for tax evasion. The children have not seen him in seven years. During that time, until about six months ago, they were spending every other week with their grandmother. My client wants to file a petition for visitation. OCGA § 19-7-3 requires her to prove that the grandchildren would be harmed if the visitation is not granted (and that their best interests will be served by the visitation). How on earth does one prove a hypothetical?

Sincerely,
Dispirited in DeKalb

Dear Dispirited:
For this answer, I am going to assume that during the 182.5 days a year that the grandmother had the children in her care for each of the seven years you mentioned, she has acted as a de facto parent – getting them up and dressed for school (or their weekend activities), making sure that they are bathed and appropriately groomed and dressed, cooking their meals, taking them to the doctor and dentist (orthodontist, ophthalmologist, therapist), reading to them at night, helping them with their homework, assisting them with school projects, tending to their fevers, wiping their tears, comforting them when they are afraid, bringing them to birthday parties, church (mosque, temple, etc.), maybe even attending parent-teacher conferences.

That level of involvement in the children’s lives would suggest a significant bond, one that, if severed abruptly, would arguably be harmful to the children – emotionally and psychologically. That claim could be buttressed by the findings of a guardian ad litem, who the Court has the authority to appoint, if it would not be an unreasonable financial hardship for your client – check out Subsection (d) of the above statute.

Does your client have any knowledge of how the children have been faring the last six months? Have their grades suffered? Have they been truant? Has unacceptable behavior resulted in disciplinary action at school? Have they stopped participating in extracurricular activities? Have they stopped going to church or spending time with friends? Have their medical needs been met? Are they depressed? Calling their grandmother and crying/constantly asking to see her? If the answer to these questions or a number of them is “yes,” then it would arguably suggest that the absence of the grandmother from the children’s lives is harmful to them – and allowing visitation would serve their best interest.

I would also ask the client what she knows about the mother’s historical functioning. Does she have stable, long-term employment, or has she been in and out of work? Does she own a home or offer a stable home environment, or has she been evicted from several different apartments in recent months? Is she in a stable relationship (married, engaged, long-term partnership) or when you look her up on the Online Judicial System (“OJS”), do you find multiple entries for family violence actions in which she is the named defendant? Would a GCIC show “no record” or 11 different charges for DUI? If Mom is not functioning in a healthy way, then having the grandmother’s stable influence would arguably be critical for the children (i.e., in their best interest and without which they would arguably be harmed).

Time is also a consideration. With its passage, it becomes increasingly difficult to meet your burden. Imagine, as an easy example, the Court being asked to find that a child would be harmed if not allowed to visit with a grandparent with whom he or she had experienced no meaningful contact in three years. In your client’s case, it has been six months. If the facts make grandma’s case an otherwise viable one, I’d not be inclined to wait another six.