Print This Article

Can a Probate Court Order Visitation in a Guardianship Case?

In In re Estate of Wertzer, 330 Ga. App. 294 (2014), the primary issue was whether the probate court had the authority to enter an order establishing a visitation schedule with the father, over the objection of the mother, who had been appointed Sierra Wetzer’s guardian and conservator. The Court held that the probate court does have such authority.

Sierra’s parents divorced in 2004 during which her parents agreed her mother would have sole legal and physical custody. Mrs. Wertzer filed a petition for guardianship in anticipation of Sierra’s 18th birthday. Her father moved to intervene and for additional relief, seeking to continue and extend the visitation he had been granted in the divorce proceedings to include overnight visits and a week-long visitation period in the summer. Additionally, the father requested that the mother notify him of any changes to Sierra’s medical condition, maintenance medications, physicians, and residential status. Alternatively, the father sought to be appointed co-guardian along with the mother.

The father’s petition to intervene was granted, but otherwise, the Court reserved ruling on his motions. On July 31, 2013, the probate court granted the mother’s petition for guardianship/conservatorship, but once again reserved ruling on the other relief requested in the father’s motion to intervene. Subsequently, the mother filed a petition in the probate court to dismiss the father’s request for visitation, contending that the probate court lacked authority to “force” Sierra to visit with her father. The probate court denied the mother’s motion to dismiss the father’s petition on October 30, 2013. Sierra turned 18 on November 20, 2013, and on December 3, 2013, the probate court issued letters of guardianship and conservatorship to the mother pursuant to its earlier order granting the petition for guardianship.

The probate court granted the father’s visitation request, extending the hours of the Saturday visits, but denied the father’s request for overnight visitation and for an extended visitation period during the summer. The probate court noted that the mother and her counsel did not appear to have any objections to the father being informed of changes to Sierra’s medical condition, medications, or residence, and additionally ordered, consistent with the parties’ prior divorce settlement agreement, that the parents confer with each other on all important matters pertaining to Sierra’s health, welfare, and education, and that each parent notify the other in the event they become aware that Sierra is suffering from any serious illness. Further, the mother was required to allow the father access to Sierra’s medical information and to all information regarding Sierra’s education.

OCGA § 29-4-13 (a) provides that the order granting or denying the guardianship “shall specify,” among other things, “(2) Any powers retained by the ward … ; (3) The limitations on the guardianship; … [and] (7) Such other and further provisions of the guardianship as the court shall determine to be in the best interest of the ward, stating the reasons therefor.” (Emphasis supplied.)

OCGA § 29-4-22, in turn, governs the obligations and decision-making authority of the guardian. Under subsection (a), “[e]xcept as otherwise provided by law or by the court,” a guardian has the right to make decisions concerning “the ward’s support, care, education, health, and welfare.” In making such decisions, the guardian is required to consider “the expressed desires and personal values of the ward[, and] shall at all times act as a fiduciary in the ward’s best interest and exercise reasonable care, diligence and prudence.” OCGA § 29-4-22 (a). Subsection (b) requires the guardian to arrange for the support, care, education, health, and welfare of the ward, and to make reports to the probate court on a regular basis. OCGA § 29-4-22 (b) (6), (9).

We glean from these provisions that the legislature intended to grant the guardian broad authority to make decisions and act on the behalf of an incapacitated adult ward. But those powers and rights are not unfettered. Rather, the grant of powers and rights to the guardian is expressly made subject to orders of the probate court. See OCGA § 29-4-22 (a) (“[e]xcept as otherwise provided … by the court …”); 29-4-23 (“unless inconsistent with the terms of any order relating to the guardianship …”). Further, the probate court is expressly given the authority to place limitations on the guardianship and to determine “other and further provisions of the guardianship … in the best interest of the ward. …” See OCGA §§ 29-4-13 (a) (3), (7); 29-4-40; 29-4-41. Accordingly, the grant of authority to the probate court to oversee guardianships is also broad. Heath v. Sims, 242 Ga. App. 691, 693 (1) (531 SE2d 115) (2000) (“with respect to areas in which the probate court has been given exclusive, original subject matter jurisdiction, its authority is broad”).

Although a ward retains the statutory power to communicate with persons other than the guardian, the statute says “communicate” not “visit.” Sierra’s mother argued omission of the word “visit” meant the legislature did not intend to allow the ward to retain that right. The Court of Appeals rejected her “in pari materia” argument as it is based on a false premise — that child custody and visitation statutes in Title 19 are related in subject matter to the guardianship statutes in Title 29. See U.S. Bank Nat. Assn. v. Gordon, 289 Ga. 12, 15 (4) (709 SE2d 258) (2011) (“[i]n particular, statutes ‘in pari materia,’ i.e., statutes relating to the same subject matter, must be construed together”) (citation and punctuation omitted). Nor are we persuaded that the guardian has the sole right to make decisions about who visits with the ward, or that the probate court has no authority to enter an order to protect the ward’s right to visit with persons other than the guardian if the court deems such visitation to be in the ward’s best interest.

Moreover, this Court has previously considered whether the court could order visitation over the objection of a guardian. In Mitchum v. Manning, 304 Ga. App. 842, 843 (698 SE2d 360) (2010), the mother/guardian opposed the father’s request for visitation with his adult incapacitated daughter on the grounds that the ward’s disabilities were caused by the father, who had allegedly abused the mother while she was pregnant. The father was granted visitation, and the mother appealed to this Court. Expressly considering the interplay between the guardian’s authority to exercise powers related to the ward’s health and welfare and the ward’s right to “communicate” with persons other than the guardian, along with our strong public policy of allowing a divorced parent continuing contact with his child, we concluded that the court had not erred by granting the father’s petition for visitation since no medical evidence or direct testimony was presented that the visitation would have a negative impact on the ward. Id. at 843-844.

The Court held that the probate court had the authority to establish a set visitation schedule between Sierra and her father in order to protect Sierra’s rights and best interests. However, the Court vacated the portion of the probate court’s order requiring the mother/guardian to confer with Sierra’s father, but retained the portion requiring the guardian to keep the father informed of changes to Sierra’s medication, education, health or residence.

Standard Used to Determine Visitation

In guardianship cases, the standard is what is determined to be in the best interests of the ward. Similarly, in child-parent visitation case decided under Title 19, the stanrdard is what is in the best interests of the children. Seemingly, because both standards seek the best interests of a protected party, cases deciding child-parent visitation relevant when a probate court considers visitation. If that is so, then Byrne v. Byrne (Ga. Ct. App. 2022) offers insight regarding factors the probate court could consider, especially when the fitness of competing petitions is closely balanced. There, the Court of Appeals found trial courts in divorce cases have broad discretion in determining which parent is entitled to custody of the children. The court “may properly consider each parent’s fitness for custody, his character, his personality, and his general health.” It may consider “[t]he willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child[.]” Quoting Haskell v. Haskell, 286 Ga. 112 (2009), the Court said “Where, as here, the trial court has exercised its discretion and awarded custody of children to one fit parent over the other fit parent, [an appellate court] will not interfere with that decision unless the evidence shows the trial court clearly abused its discretion. Where there is any evidence to support the decision of the trial court, [an appellate court] cannot say there was an abuse of discretion.”


Start Here

Enter your name and email address to keep up with what’s new at EZ Elder Law!

  • This field is for validation purposes and should be left unchanged.