In 2019 Georgia created the Equitable Caregiver Statute. Under this Statute, a person who is not a legal parent of a child may seek rights such as custody or visitation with the child if he or she proves certain things, such as that he or she has undertaken a “parental” role with the child and developed a “bonded and dependent” relationship with the child that “was fostered or supported by a parent of the child.” OCGA § 19-7-3.1 (d). This Statute has caused much debate about whether the Equitable Caregiver Statute violates the fundamental rights of parents to care for, have custody of and to control their children. As the Statute evolves the Supreme Court of Georgia has recently held that interactions with a child prior to enactment of the Equitable Caregiver Statute are not to be considered. This ruling will impact cases for several years to come.
In my practice I have seen the Equitable Caregiver Statute be used by Grandparents to prevent their own children from harming grandchildren. I have also had cases where same sex parents divorce and one of the parents is seeking to keep the other parent out of the minor child’s life. However this Statue is not just limited to same Grandparents or same sex couples.
Grandparents often files to get rights under the Equitable Caregiver Statute when the grandparent’s child is a drug addict or otherwise unable or unwilling to care for a grandchild. In many cases the parent is all too happy to have his or her mother raise their child or children while they are out running wild. The minor child often lives with the grandparent; and the grandparent often will take the child to and from school, help with homework, arrange doctors appointments, and feed and provide clothes to the child. In some cases the parent will even stay with the minor child at Grandparent’s house from time to time; but often the parent is just storing some clothes and running the streets while a grandparent cares for the child. While this scenario is sad it is unfortunately very common. In my experience this situation goes one of three ways. First is when the drug addict parent meets another drug addict, and they are going to take the minor child and move someplace together with the minor child. Fat chance the child will be attending school with any regularity or having his or her needs met with any regularity. Second is when the biological parent gets mad at the grandparent for not giving money or ceasing some other type of enabling behavior and then the biological parent withholds the minor child. Lastly is when the biological parent is rehabilitated and wants to be a parent, but often the grandparent is not so sure this rehabilitation is going to work and wants the child to stay where they are. However Equitable Caregiver rights are not only for grandparents.
Another common scenario is when same sex parents are raising a child and then divorce. The most common scenario I have seen in relation to same sex couples is when a person gains physical and legal custody of a minor through adoption and then gets married. The Equitable Caregiver Statute would not apply if same sex parents had adopted a child; since both would already have custody rights under Georgia law. However, if a parent has adopted a child prior to a marriage and then is getting divorced the child’s other parent can use the Equitable Caregiver Statute to gain and establish rights to the child.
As a starting point, the individual seeking equitable caregiver status must establish by clear and convincing evidence each of five statutory prerequisites, showing that that he or she has: (1) Fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life; (2) Engaged in consistent caretaking of the child; (3) Established a bonded and dependent relationship with the child, which relationship was fostered or supported by a parent of the child, and such individual and the parent have understood, acknowledged, or accepted that or behaved as though such individual is a parent of the child; (4) Accepted full and permanent responsibilities as a parent of the child without expectation of financial compensation; and (5) Demonstrated that the child will suffer physical harm or long-term emotional harm and that continuing the relationship between such individual and the child is in the best interest of the child.
Furthermore, all of these statutory prerequisites must have taken place AFTER the Equitable Caregiver Statute became law. So any evidence of a relationship with the child or of the factors to be considered to grant legal rights must be for acts done after 2019 and not before.
But does the Equitable Caregiver Statute violate the rights of parents by allowing non-parents to obtain custody or visitation rights without requiring a finding of parental unfitness or harm to the child? Recently the Equitible Caregiver Statute has been called into question with Court’s examining if a parent has waived their constitutional rights by fostering a relationship between the child and another person. However a Court is yet to rule on that exact point.
Acknowledging all of the real life situations that occur where it is somebody other than biological parents raising children the Equitable Caregiver Statute was created to give those defacto parents rights. However the Statute is only 6 years old and not all of the ramifications and possible scenarios have been fully litigated and resolved by the Courts. In closing it is fair to say that the Equitable Caregiver Statute is evolving at the tension between parental rights, the need to protect children, and the rights of those stepping in to raise children are flushed out.
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