Keith v. Callahan

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/

May 1, 2015

In the Court of Appeals of Georgia
A15A0557. KEITH v. CALLAHAN.

MCMILLIAN, Judge.

Susan J. Callahan filed a petition seeking visitation rights to her minor

granddaughter, A. C., pursuant to OCGA § 19-7-3. Following a hearing, the trial

court entered judgment in favor of Callahan. A. C.’s mother (the “mother”), who is

Callahan’s daughter, appeals that order, asserting that the trial court erred as a matter

of law in awarding visitation to Callahan. Having considered her arguments, we find

no error and affirm.

In reviewing an order granting grandparent visitation, “we view the evidence

in the light most favorable to the trial court’s judgment to determine whether any

rational trier of fact could have found by clear and convincing evidence that the

mandated visitation was authorized.” (Citation omitted.) Esasky v. Ford, 321 Ga.
App. 891, 892 (743 SE2d 550) (2013). And in doing so, “[w]e do not weigh the

evidence or determine witness credibility, but defer to the trial court’s factfinding and

affirm unless the evidence fails to satisfy the appellate standard of review.” (Citation

omitted.) Id.

So viewed, the evidence shows that A. C. was born on December 25, 2007. The

mother and father, having never married, separated in July 2011. In September 2011,

the mother began a relationship with Michael Keith,1 whom she later married in

November 2013. Beginning when A. C. was born and continuing through 2009,

Callahan watched A. C. every day that the mother worked. From 2009 through

January 2014, Callahan continued to watch A. C. two to three days per week,

including overnight every Friday night. Callahan has a bedroom set up just for A. C.

at her home. She frequently paid for A. C.’s meals and activities and took her

shopping for trinkets and clothing. And while the mother was attending nursing

school in 2011 and 2012, Callahan provided so much financial assistance that she

claimed A. C. as a dependent on her tax returns with the mother’s permission.

However, on February 5, 2014, as she was returning A. C. to the mother and

Michael’s home, Michael angrily confronted her and told her that she would not be

1
For clarity, we will refer to Michael Keith as “Michael” in this opinion.

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allowed to take A. C. again unless she also included his two sons from his previous

marriage. Shortly thereafter, Callahan filed a petition for visitation with A. C.

pursuant to OCGA § 19-7-3. The parties’ attempt at court-ordered mediation was

unsuccessful , and the case proceeded to a final hearing on August 4, 2014, at which

Callahan, the mother, and Michael each testified.2 On August 8, 2014, the trial court

entered an order setting forth findings of fact and concluding, under a standard of

clear and convincing evidence, that A. C.’s welfare would be harmed unless visitation

with Callahan is granted and that it is in A. C.’s best interest that such visitation be

granted.3

1. The mother first argues that the trial court erred in granting visitation

because her decision should be conclusive. However, Georgia law expressly provides

that “[w]hile a parent’s decision . . . shall be given deference by the court, the parent’s

decision shall not be conclusive when failure to provide grandparent contact would

2
The record shows that the father was served with an amended petition in
which he was named as a party. However, he did not file a response or appear at the
hearing and is not a party to this appeal.
3
The order also established a visitation schedule, which included every other
Friday from 4:00 p.m. until 6:00 p.m. on Saturday, one week during summer break,
and several days during winter break.

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result in emotional harm to the child.” (Emphasis supplied.) OCGA § 19-7-3 (c) (3).4

And, a trial court “may grant any grandparent . . . 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.”

(Emphasis supplied.) OCGA § 19-7-3 (c) (1).5 Thus, the mother’s reading of the

statute as conferring upon her conclusive authority to grant Callahan visitation with

A. C. is incorrect. As this Court has explained, this 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.” (Citations and

4
This code section also creates a rebuttable presumption “that a child who is
denied any contact with his or her grandparent or who is not provided some minimal
opportunity for contact with his or her grandparent may suffer emotional injury that
is harmful to such child’s health.” OCGA § 19-7-3 (c) (3).
5
In making these findings, the trial court is required to consider whether (1)
the child resided with the grandparent for six months or more; (2) the grandparent
provided financial support for the basic needs of the child for at least one year; (3)
there was an established pattern of regular visitation or child care by the grandparent;
or (4) any other circumstance exists indicating that emotional or physical harm would
be reasonably likely if visitation is not granted. See OCGA § 19-7-3 (c) (1) (A) - (D).

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punctuation omitted.) Sheppard v. McCraney, 317 Ga. App. 91, 92 (730 SE2d 721)

(2012).

The mother argues, nonetheless, that because she testified that Callahan was

“free and welcome to visit” with A. C., albeit only at her home, the trial court had no

authority to implement a competing visitation schedule. But the mother has provided

no authority that requires the trial court to balance the competing interests and rights

of the grandparent, parent, and child in such a way that OCGA § 19-7-3 would only

apply where absolutely all visitation has been cut off, and we find none. In essence,

the mother is asserting that the trial court rejected her wishes for creating a visitation

schedule, which would only include visitation at her home and would be conditioned

on Callahan’s inclusion of Michael’s sons in the visitation.

We recently addressed similar circumstances, in which a set of grandparents

regularly visited with their grandchild until they experienced “resistance” from the

child’s mother following the death of their son. Evans v. Sangster, 330 Ga. App. 533,

534 (768 SE2d 278) (2015). With the assistance of counsel, the mother and

grandparents entered into an agreement setting out a regular visitation schedule, but

the grandparents later filed a petition seeking court-ordered visitation. Id. The mother

then withheld all visitation and, in her answer, asserted that visitation between her

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child and the grandparents “was entirely at her discretion.” Id. The trial court

disagreed and entered an order granting the grandparents regularly scheduled

visitation. Id. at 535. On appeal, we rejected the mother’s contention that the court

gave no deference to her wishes in crafting the visitation schedule and affirmed the

trial court’s order. Id. at 536-537 (2) (noting the order expressly recognized the

mother’s judgment as to the best interest of the child regarding visitation shall be

given deference but is not conclusive). See also Luke v. Luke, 280 Ga. App. 607, 608-

609 (634 SE2d 439) (2006) (affirming trial court’s grant of regularly scheduled

grandparent visitation where record showed mother had previously agreed the

grandparent could spend “some time” with her children).

Here, the trial court utilized the correct clear and convincing standard of proof

in finding that A. C.’s welfare would be harmed unless reasonable visitation with

Callahan was granted and that it is in the best interest of A. C. that such visitation be

granted. And in reaching that determination, the trial court noted that it considered

the “facts and circumstances of the case” and the parties’ respective “interest in the

case.” Although the mother testified that Callahan was “welcome” to visit A. C. at

her home, Callahan testified that she has not returned to their home since the evening

of February 5, 2014 because she is afraid of having another confrontation with

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Michael. In its findings of fact, the trial court expressly noted that Callahan “is clearly

frightened of [Michael]” and that her concerns “are certainly understandable in light

of his testimony in court including his attitude and overall demeanor which was very

combative and aggressive.” Thus, the mother’s argument is without merit, and the

trial court did not err in declining to give the mother’s decision conclusive effect. See

Evans, 330 Ga. App. at 536-537 (2).

2. The mother also contends that the trial court only considered A. C.’s best

interest from Callahan’s point of view and, therefore, made erroneous findings of fact.

She first takes issue with the trial court’s finding that Michael was argumentative and

that Callahan feared a confrontation with him. The mother argues that this finding is

unsupported because the trial court only relied on Callahan’s testimony and

disregarded hers and Michael’s testimony. However, in its order, the trial court made

express findings as to the credibility and demeanor of the witnesses, including

Michael. And this fact-finding is a duty specifically reserved for the trial court. See,

e.g., Esasky, 321 Ga. App. at 892 (appellate court does not weigh evidence or

determine witness credibility, but defers to the trial court’s fact-finding).

The mother also complains that the trial court failed to consider that she has

two stepsons and that A. C. will see that her stepbrothers are not going with her to

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Callahan’s home. However, the trial court’s order clearly shows that it considered the

fact that Michael has two sons from his prior marriage who live with Michael and the

mother and that the boys have regular visitation with their mother. Viewed in the light

most favorable to the judgment – wherein the trial court found through Callahan’s

testimony, and at times the mother’s testimony as well, that Callahan has spent

significant, meaningful time with A. C. since her birth, has kept a bedroom for her in

her home, has cared for her two to three days every week (including a weekly

overnight visit), has provided her with substantial financial assistance, has been a

strong influence in her life, has maintained a very close relationship with her, and that

it would be harmful to A. C. to sever this relationship – the evidence authorized the

court’s express finding that it is in the best interest of A. C. that visitation with

Callahan be granted.6 See Luke, 280 Ga. App. at 611-612 (3).

Judgment affirmed. Barnes, P. J., and Ray, J., concur.

6
The mother’s dissatisfaction with the amount of time Callahan wishes or is
able to spend with Michael’s sons is not an issue addressed by OCGA § 19-7-3, and
it may remain a matter that cannot be readily resolved through our legal system.

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