dissenting.
I respectfully dissent from the majority’s sweeping pronouncement that OCGA § 19-7-3, Georgia’s “Grandparent Visitation Statute,”8 violates the constitutions of both Georgia and the United States. I believe the majority has ignored long-standing rules of statutory construction and, in so doing, has placed Georgia in the vanguard of a minority of one.9
The judicial branch of this state has the constitutional power and duty to declare void legislative acts which violate the U. S. or Georgia Constitution; however, “the conflict between the act and the fundamental law must be clear and palpable before an act of a co-ordinate department of the government will be declared unconstitutional. *198[Cits.]” Lamons v. Yarbrough, 206 Ga. 50, 57-58 (55 SE2d 551) (1949). We must presume that a statute is valid and constitutional until the contrary appears (Williams v. Ragsdale, 205 Ga. 274 (2) (53 SE2d 339) (1949)), and construe a statute in such a way as to find it constitutional. Garner v. Harrison, 260 Ga. 866, 868 (400 SE2d 925) (1991). “Language in [a statute] will be given a reasonable and sensible interpretation in order to carry out legislative intent and render [the statute] valid. [Cit.]” Mayor &c. of Hapeville v. Anderson, 246 Ga. 786, 787 (272 SE2d 713) (1980).
Instead of adhering to Georgia’s principles of statutory interpretation when faced with a constitutional challenge, the majority simply follows the analysis of the Supreme Court of Tennessee in its decision in Hawk v. Hawk, 855 SW2d 573 (Tenn. 1993). The Tennessee court based its decision on the right to privacy it found in the Tennessee Constitution in 1992 (id. at 577), the determination that parental rights are a fundamental liberty interest under the Tennessee Constitution (id. at 579), “Tennessee’s historically strong protection of parental rights” (id.), and the limitation of Tennessee’s authority as parens patriae to interfere with parenting to situations wherein it was necessary to prevent serious harm to a child. Id. at 580.10 However, what may fit Tennessee does not necessarily fit Georgia.
A person in Georgia has a constitutionally protected right to privacy. In addition to the right of privacy found in the penumbrae of the Ninth and Fourteenth Amendments to the U. S. Constitution (Griswold v. Connecticut, 381 U. S. 479 (85 SC 1678, 14 LE2d 510) (1965)), the Georgia Constitution protects a person’s right to privacy. Over 90 years ago, this court assured all persons in Georgia of a right to privacy guaranteed by the state constitutional provision that no person could be deprived of liberty without due process of law. Pavesich v. New England Life Ins. Co., 122 Ga. 190, 197 (50 SE 68) (1904). Parents in Georgia, as well as parents throughout the United *199States, have a fundamental right, guaranteed by the liberty interest protected by the Fourteenth Amendment to the U. S. Constitution, to establish a home and direct the upbringing and education of their children without undue governmental interference. See Pierce v. Society of Sisters, 268 U. S. 510, 534 (45 SC 571, 69 LE 1070) (1925); Meyer v. Nebraska, 262 U. S. 390, 399 (43 SC 625, 67 LE 1042) (1923). However,
the family itself is not beyond regulation in the public interest... . Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control. . . . [T]he state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare ....
Prince v. Massachusetts, 321 U. S. 158, 166 (64 SC 438, 88 LE 645) (1944). “The well-being of its children is of course a subject within the State’s constitutional power to regulate . . . .” Ginsberg v. New York, 390 U. S. 629, 639 (88 SC 1274, 20 LE2d 195) (1968). As parens patriae, the State “has a legitimate interest in protecting those individuals unable to protect themselves.” Blackburn v. Blackburn, 249 Ga. 689, 692, n. 5 (292 SE2d 821) (1982). “[T]he parens patriae must protect the helpless and the innocent. They are the wards of the court, the hope of the State, and the seed corn of the future.” Williams v. Crosby, 118 Ga. 296, 298 (45 SE 282) (1903). Acting as parens patriae, the government can require that children be educated, inoculated against disease, restrained when traveling in motor vehicles, forbidden employment under a certain age, protected from abuse, and required to be indoors during prescribed hours of the night. Thus, it is clear that the State may impose reasonable regulations that do not substantially interfere with the parents’ fundamental right. Zablocki v. Redhail, 434 U. S. 374, 386 (98 SC 673, 54 LE2d 618) (1978). A legislative action that interferes with the parents’ fundamental right must “directly and substantially” interfere with the parental right or “heavily burden” their liberty interest before the State’s action will be subject to strict scrutiny. Lyng v. Castillo, 477 U. S. 635, 638 (106 SC 2727, 91 LE2d 527) (1986). Thus, the less rigorous standard of whether there is a “reasonable relationship to any end within the competency of the State” is applied when the interference is not direct and substantial and the liberty interest not heavily burdened. Meyer v. Nebraska, supra, 262 U. S. 390, 403.
Following Tennessee’s lead, the majority maintains that the State’s authority to assert itself as parens patriae “is permissible only where the health or welfare of a child is threatened.” Majority, p. 193. However, in Georgia, the courts have acted as parens patriae when *200considering such non-threatening items as a child’s name change (Fulghum v. Paul, 229 Ga. 463 (192 SE2d 376) (1972)), and a purported father’s petition of legitimation. Mabry v. Tadlock, 157 Ga. App. 257 (277 SE2d 688) (1981). In Georgia, the exercise of the parens patriae power has always had as its paramount consideration the best interests of the child (id.), and its exercise has become synonymous with the child’s best interests and welfare.11
For decades, the courts of this state have recognized that the best interests of the child may often include contact with a grandparent, and have exercised judicial discretion to achieve that goal. In 1910, Judge Richard B. Russell pointed out that “[a widowed] father is not, as a matter of right, in all cases and under all circumstances entitled to the custody of his child,” even when he is a proper person to raise a child, because it is “the welfare of the little one” which is paramount. Evans v. Lane, 8 Ga. App. 826, 831 (70 SE 603) (1910). The court noted that “welfare” included “that peacefulness of mind and sweet content upon which its happiness depends,” and opined that the child
surrounded with every accessory ... of luxurious wealth, might be far less happy than she would be in receiving one tender stroke of the grand [parent]’s hand, or one loving look from the grand [parent]’s heart.
Id. at 831. In Scott v. Scott, 154 Ga. 659 (115 SE 2) (1922), this court recognized the right of a trial court to exercise its discretion and award grandparent visitation. In addition, the General Assembly has expressly stated that Georgia has a policy “to encourage that a minor child has continuing contact with . . . grandparents who have shown the ability to act in the best interest of the child. . . .” OCGA § 19-9-3 (d).
Other states have also noted that a court acts parens patriae when providing for grandparent visitation after finding it is in the best interest of the grandchild to do so. In rejecting a constitutional challenge to the Kansas statute authorizing court-ordered grandparent visitation, the Kansas Court of Appeals recognized the State’s interest in protecting its children and assuring they receive proper care. The court concluded that “the parents’ rights are subordinate to the State’s paren [s] patriae powers and must yield when adverse to the best interests of the child. [Cit.]” Spradling v. Harris, 778 P2d 365, 367 (Kan. App. 1989). In Sketo v. Brown, 559 S2d 381, 382 (Fla. App. *2011990), the Florida Court of Appeals held that
[t]he state has a sufficiently compelling interest in the welfare of children that it can provide for the continuation of relations between children and their grandparents under reasonable terms and conditions so long as that is in the children’s interest.
The Supreme Court of New Hampshire has found the “better view” to be that a court, as an instrumentality of the State, “may use its parens patriae power to decide whether the welfare of the child warrants court-ordered visitation with grandparents . . . .” Roberts v. Ward, 493 A2d 478, 481 (N.H. 1985). New York “in its role as parens patriae has determined that, under certain limited circumstances, grandparents should have continuing contacts with the child’s development if it is in the child’s best interest.” People ex rel. Sibley v. Sheppard, 429 NE2d 1049, 1052 (NY 1981). The Indiana Court of Appeals has concluded that Indiana’s grandparent visitation statute “interferes with a parent’s liberty interests only to observe its duty under the parens patriae doctrine and only upon a finding that it would be in the best interest of the child.” Bailey v. Menzie, 542 NE2d 1015, 1020 (Ind. App. 1989). See also R. T. v. J. E., 650 A2d 13 (N.J. Super. Ch. 1994) (upholding the New Jersey statute authorizing grandparent visitation if in the best interest of child against constitutional challenge); Herndon v. Tuhey, 857 SW2d 203 (Mo. 1993) (upholding the Missouri statute authorizing grandparent visitation if in child’s best interest against constitutional challenge); King v. King, 828 SW2d 630 (Ky. 1992), cert. denied,_U. S.__(113 SC 378, 121 LE2d 289) (1992) (upholding the Kentucky statute authorizing grandparent visitation against constitutional challenge if visitation is in the best interest of the child); Deweese v. Crawford, 520 SW2d 522 (Tex. Civ. App. 1975) (rejecting an attack on the constitutionality of the Texas statute authorizing grandparent visitation). The Supreme Court of New Hampshire summarized the dilemma which each of these courts faced:
Parental autonomy is grounded in the assumption that natural parents raise their own children in nuclear families, consisting of a married couple and their children. . . . The realities of modern living, however, demonstrate that the validity of according almost absolute judicial deference to parental rights has become less compelling as the foundation upon which they are premised, the traditional nuclear family, has eroded .... More varied and complicated family situations arise as divorces, and decisions not to marry, result in single-*202parent families; as remarriages create step-families; as some parents abandon their children; as others give them to temporary caretakers; and as still others are judged unfit to raise their own children. One of the frequent consequences, for children, of the decline of the traditional nuclear family is the formation of close personal attachments between them and adults outside of their immediate families. . . . It . . . [is] shortsighted indeed, for this court not to recognize the realities and complexities of modern family life, by holding today that a child has no rights, over the objection of a parent, to maintain a close extra-parental relationship. . . .
Roberts v. Ward, supra, 493 A2d 478, 481, citing Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives when the Premise of the Nuclear Family Has Failed, 70 Va. Law Rev. 879 (1984).
The Georgia Grandparent Visitation Statute confers standing upon grandparents to apply to a court for the privilege of visiting with their grandchildren. Sachs v. Walzer, 242 Ga. 742 (251 SE2d 302) (1978). It does not confer a substantive or absolute right of visitation, but simply establishes a procedural vehicle through which grandparents may ask the court to allow visitation. It does not presume the existence of a beneficial relationship between grandparents and grandchildren. See Hawk v. Hawk, supra, 855 SW2d at 581, where the Tennessee Supreme Court sought “to avoid the ‘unquestioning judicial assumption’ that grandparent-grandchild relationships always benefit children. ...” Rather, it requires grandparents to establish “special circumstances which make such visitation rights necessary to the best interests of the child.” OCGA § 19-7-3 (c). In essence, the statute codifies what Georgia courts have been doing for years — providing for grandparent visitation after it is established that such visitation is in the best interests of the child.
Our statute is a legitimate exercise of the General Assembly’s power to balance the competing interests of children, their parents, and their grandparents. The statute is an embodiment of the expressed policy of this state “to encourage that a minor child has continuing contact with . . . grandparents who have shown the ability to act in the best interest of the child. . . .” OCGA § 19-9-3 (d). The limited infringement upon parental rights by the Grandparent Visitation Statute is not of the magnitude of the infringement of parental rights that was involved in In re: Suggs 249 Ga. 365 (291 SE2d 233) (1982), cited by the majority. In that case, the permanent termination of parental rights was at issue; in the case at bar, we are examining a statute that provides a means by which grandparents can seek tempo-
*203Decided March 17, 1995. Sutton & McCreary, Timothy A. McCreary, for appellants. Lela S. Bridgers, Robert E. Flournoy III, for appellee.rary visitation when that is found to be in the child’s best interest.12 Our statute does not directly or substantially interfere with the parental right, and is rationally related to a legitimate legislative goal. Under the rules of statutory construction when the constitutionality of legislation is questioned, it is constitutional.
For over 80 years the appellate courts of Georgia have recognized the authority of a trial court to exercise its discretion and provide for visitation between grandparents and grandchildren when it was in the best interest of the children involved. See Scott v. Scott, 154 Ga. 659, supra; and Evans v. Lane, 8 Ga. App. 826, supra. The majority now holds that the legislative act giving grandparents standing to ask for visitation and codifying the judicial practice of providing for such visitation when it was in the child’s best interest is unconstitutional. “While the court may not agree with the wisdom of the statute, we are not authorized to second guess the legislature.” Celotex Corp. v. St. Joseph Hosp., 259 Ga. 108, 111 (376 SE2d 880) (1989) (Hunt, J., dissenting). As I cannot join my colleagues in second-guessing the legislature, I dissent from their holding that the Grandparent Visitation Statute is not constitutional.
I am authorized to state that Justice Hunstein joins this dissent.
The statute, as pertinent to the facts of the case at bar, states:
(b) Any grandparent shall have the right to file an original action for visitation rights to a minor child ....
(c) Upon the filing of an original action . . . under subsection (b) of this Code section, the court may grant any grandparent of the child reasonable visitation rights upon proof of special circumstances which make such visitation rights necessary to the best interests of the child. There shall be no presumption in favor of visitation by any grandparent; and the court shall have discretion to deny such visitation rights. . . .
No state has declared a grandparent visitation statute violative of the U. S. Constitution. Tennessee, the only other state to find its grandparent visitation statute unconstitutional, based its holding on the Tennessee Constitution alone. Hawk v. Hawk, 855 SW2d 573, 582 (Tenn. 1993).
The Tennessee decision was expressly limited to a determination of the constitutionality of Tennessee’s grandparent visitation statute “as it applies to the decision of these'married parents to deny the paternal grandparents visitation with their grandchildren.” Id. at 575.
When applied to married parents who have maintained continuous custody of their children and have acted as fit parents, [court-ordered grandparent visitation under the statute] constitutes an unconstitutional invasion of privacy rights under the Tennessee Constitution.
Id. at 582. The majority does not so limit its condemnation of the Georgia statute. In addition, I wish to note that, in 1993, a trial court ruled that OCGA § 19-7-3 (b) was unconstitutional insofar as it authorized court-ordered grandparent visitation after the grandchild had been adopted by a blood relative. The trial court determined that the visitation statute controverted the adoption statute and constituted an unreasonable intrusion upon the adoptive parents’ child-rearing autonomy. Massey v. Robinson, Civ. Action No. 93-A-02922-2, Superior Court of Gwinnett County (Stark, J.). This Court affirmed that decision without opinion, pursuant to Rule 59 of the Rules of this court. 263 Ga. XXVII.
In Harper v. Ballensinger, 226 Ga. 828, 831 (177 SE2d 693) (1970), the court acknowledged the right of a child’s sibling to institute a proceeding “in order that the court as parens patriae might inquire into the circumstances of the welfare of the child.”
The majority also cites In re L. H. R., 253 Ga. 439 (321 SE2d 716) (1984), which involved the circumstances under which life-support systems might be removed from “a terminally ill [infant] existing in a chronic vegetative state with no hope of development of cognitive function.” Id. This court determined that the child’s parent or legal guardian could exercise the constitutional right to refuse or to terminate medical treatment, but only after the attending physician rendered a diagnosis and prognosis of terminal illness with no hope of recovery and current existence in a chronic vegetative state with no reasonable possibility of attaining cognitive function, and two disinterested physicians concurred. Thus, the parental right concerning treatment of the child was not as free from interference as the majority might hope.