First, the court examined the interest that are protected by the federal Constitution. Then, the court looked at the extent to which a state may infringe upon an interest that is protected by the constitution. Last, the court had to determine if the state statute in question was within the permissible scope of infringement. As a matter of well-established constitutional law, and whether married, separated or divorced parents have a constitutional right to privacy. On the other hand, citing the due process and equal protection clauses of the 14th Amendment and the Ninth Amendment's right to privacy, the U.S. Supreme Court has declared unconstitutional laws that made the children of unwed fathers wards of the state upon the death of the mother.
Most state constitutions have similar protections.
Rather than a mere preponderance of evidence, clear and convincing evidence of harm to the child is needed to support removal from the parent. There is little empirical evidence that grandparent visitation promotes a grandchild's health and welfare. Ga. Code Ann. Now grandparent visitation rights may be sought in Georgia only when at least one of the child's parents has died or the parents' rights have been terminated. Including cases in which there has been an adoption by the child's blood relative or by a stepparent.