The maternal grandparents of an eight year old child petitioned to establish visitation rights with respect to that child. This petition was filed approximately seven years after the child was born, and five years after the mother’s death. During the mother’s struggle with cancer, the maternal grandparents lived with the mother and the child, and therefore saw the child on a daily basis for the first twenty-two months of his or her life.
At the time of the filing of the petition, the child’s father had remarried, and his wife, the child’s stepmother, had adopted the child through proceedings in North Carolina. The child had not seen his or her maternal grandparents in approximately four years, and, according to the stepmother, did not remember who they were. The father filed a motion for summary judgment against the grandparents’ visitation rights petition. In response, the grandparents filed affidavits of witnesses who were aware of their past relationship with their grandchild, and they asked for the appointment of a Guardian ad Litem. As a basis for the denial of the father’s motion for summary judgment, the maternal grandparents asked for an opportunity to “develop their case” – an option that is contemplated by language under O.C.G.A. § 9-11-56(f). The trial court denied summary judgment, and authorized the appointment of a Guardian ad Litem.
NOTE: the father did not contest whether or not the grandparents even had a right to file their petition (see Bailey v. Kunz decision). The limited issues on which the Court of Appeals upheld the trial court’s decision were: 1) the propriety of the denial of the motion for summary judgment; and 2) the propriety of the grant of the Guardian ad Litem request. The appellate court noted that, in the context of a motion for summary judgment, should the non-movant be unable to present facts that would otherwise cause his or her case to survive such a motion via affidavit at that time, the trial court “may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had . . . .” Such a decision “lies in the sound discretion of the court” under O.C.G.A. § 9-11-56(f), and the appointment of a Guardian ad Litem was permissible under such circumstances.
Laura Morgan is a Family Law Consultant. Laura is available for consultation, brief writing and research on family law issues throughout the country. She can be reached through her website. www.famlawconsult.com