Can a Non-Family Member Petition the Court for Parental Rights in Georgia?
(O.C.G.A. § 19-7-3.1)
Recognizing a void in the law, Georgia has recently enacted an Equitable Caregiver Law that allows an unrelated adult, who has previously cared for the child, the option to petition the court to establish custody, visitation and establish parental rights to a non-biological child. This statute can benefit:
- Stepparents of a child, whose biological parent is no longer alive or divorces the stepparent grandparents who were providing care for a child who then have access to the child blocked or denied by the child’s biological parents
- Non-biological parents who take in an abandoned child
- Family friends who have provided care for a child
- A non-biological partner in a same-sex marriage where the biological parent dies or the couple splits
The law reflects the fact that in contemporary society unrelated persons are often necessary and vital in a child’s life; and may be a child’s best option.
You may be old enough to remember June Cleaver striving to make Theodore “The Beaver” Cleaver’s life simply wonderful in the iconic sitcom of the 50’s/60’s Leave it to Beaver. The show featured the exploits of “the Beaver” in a “traditional” suburban family with a mother, father, older brother and pesky but lovable friend. Viewer’s were not so subtlety shown each week how a young boy is bound to get into innocent mischief only to be cheerfully corrected and guided by his understanding and present biological parents.
Perhaps you remember Mike and Carol’s blended family of the 70’s where a lovely lady was bringing up three very lovely girls. The lady met the fellow and The Brady Bunch changed, or advanced the narrative of the suburban family. While the show played more on sibling rivalries and heteronormative concepts than Leave it to Beaver, the narrative of supportive guidance from present biological parents had changed to include the love and guidance of a stepparent. Sometime late in the show Carol Brady’s nephew Oliver was sent to live with the Brady Bunch while his parents were in South Africa. But let us suppose that Oliver lived with the Bradys while his divorced parents were in jail or in rehab. What was Mike to do if Oliver was flourishing in his new home, and a parent returned to insist that Oliver live with him or her in a crack house, or refuse to let Oliver see Mr. Brady again? While it is doubtful that it was intentional, the Brady Bunch may have foreshadowed the need for a mechanism for persons not related to a minor child to Petition for parental rights, custody, and/or visitation of a child even if the child’s biological parents are in opposition.
Georgia has recognized this need and acted.
On May 6, 2019 the General Assembly of Georgia enacted 2019 Ga. HB 543[1] to create O.C.G.A § 19-7-3.1, the Equitable Care Giver Statute[2] The law now gives non-family members the possibility of having standing to bring a Petition for not only custody or visitation, but for parental rights[3] as well. A person’s standing to Petition to be considered an equitable caregiver is base on their existing involvement with the child rather than a family relationship with the child.[4] However, even if a person meets the defined criteria of an equitable caregiver, the Court still has the discretion to refuse find them an equitable caregiver; as “may” is used throughout the Statute rather than “shall”.[5] It would seem that the Georgia General Assembly wished to be extremely cautious in application of the Statute by giving the Courts a lot of discretionary authority[6] throughout O.C.G.A § 19-7-3.1.
O.C.G.A § 19-7-3.1 is clear that biological parental rights are not being terminated [7], but merely permits adding another person who can legally act as a parent once they demonstrate by clear and convincing evidence that they have already undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life, and the child will suffer physical harm or long-term emotional harm so that continuing the relationship between the individual and the child is in the best interest of the child (among other factors)[8] However, a person cannot be adjudicated to be an equitable caregiver if the child’s parents are not separated and the child is living with both of the parents.[9] While there are many similarities between the role of a Guardian of a child and an Equitable Caregiver a primary distinction is that caregiver is a person who already has a relationship with a child, while a Guardian’s relationship with the child may be created through the Court proceeding itself.
A person seeking to be deemed an equitable care giver must file their Petitioner following specific notice requirements[10]; and an adverse party, parent, or legal guardian will have the opportunity to file an affidavit in response.[11] Once the Court determines that the Petitioner has met the prima facia burden of an equitable care giver there are a few more requirements that must be met.[12]
The equitable care giver must have:
(1) Fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life
(2) Engaged in consistent care taking of the child
(3) Established a bonded and dependent relationship with the child, the relationship was fostered or supported by a parent of the child, and such individual and the parent have understood, acknowledged, or accepted 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
(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.
In determining the existence of harm, the court shall consider factors related to the child’s needs, including, but not limited to:
(1) Who are the past and present caretakers of the child
(2) With whom has the child formed psychological bonds and the strength of those bonds
(3) Whether competing parties evidenced an interest in, and contact with, the child over time
(4) Whether the child has unique medical or psychological needs that one party is better able to meet.
As O.C.G.A § 19-7-3.1 is a new enactment there have not been many cases or decisions regarding this statute to provide much guidance to the practitioner on how the Courts are likely to deal with its implementation or if any particular factor is given more weight over another factor. However the one thing that is for sure is that many people in are living quite differently that those portrayed in Leave it to Beaver and the Brady Bunch and the law is evolving to address new challenges created by non-traditional families. It was Charles Dickens who correctly mused “Family not only need to consist of merely those whom we share blood, but also for those whom we’d give blood.”
Author
Donato “Dan” Palumbo is a Partner with Palumbo Law LLC in Atlanta, Georgia. Dan engages in all aspects of family law litigation, including representing clients in divorce matters, custody cases, child support cases, contempt actions and modifications. In addition to family law, Dan is experienced in criminal litigation, including traffic tickets, DUI, misdemeanors, and felony cases. Dan has served as a Volunteer Attorney at the Ft. McPherson Veteran’s Association Legal Clinic for Veterans. Dan has spoken at the American Bar Association Fall Conference 2018.
Dan is currently licensed to practice law in all Courts of Georgia; in New York State; before the United States District Court, Southern District of New York; and before the United States District Court, Northern District of Georgia. Dan is also a retired professional firefighter. He served with the Eastchester Fire District in Eastchester, New York from April 1988 – December 2014. Dan is a member of the New York Police and Fire Retirees Association and International Association of Firefighters.
Dan can be reached at dan@palumbolawga.com, www.palumbolawga.com, www.mycousindanny.com, or 470-275-1500
[1] 2019 Ga. ALS 218, 2019 Ga. Laws 218, 2019 Ga. Act 218, 2019 Ga. HB 543, 2019 Ga. ALS 218, 2019 Ga. Laws 218, 2019 Ga. Act 218, 2019 Ga. HB 543
[2] See, GA – Official Code of Georgia Annotated, TITLE 19. DOMESTIC RELATIONSCHAPTER 7. PARENT AND CHILD RELATIONSHIP GENERALLYARTICLE 1. GENERAL PROVISIONS § 19-7-3.1. Equitable caregivers; form; required findings; establishment of parental rights; not a disestablishment of parentage
[3] O.C.G.A § 19-7-3.1 (g) The court may enter an order as appropriate to establish parental rights and responsibilities for such individual, including, but not limited to, custody or visitation.
[4] O.C.G.A § 19-7-3.1 (D)(1) Fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life
[5] O.C.G.A § 19-7-3.1 (a) The court may adjudicate an individual to be an equitable caregiver.
[6] The term “may” is used times 5 within O.C.G.A § 19-7-3.1. See O.C.G.A § 19-7-3.1 (a) The court may adjudicate an individual to be an equitable caregiver; (b) An individual seeking to be adjudicated an equitable caregiver of a child under this Code section may establish standing to maintain the action in accordance with the following:; (c) A document substantially in the following form may be used to create a pleading and affidavit for purposes of paragraph (1) of subsection (d) of this Code section:; (f) A court may grant standing on an individual seeking to be adjudicated as an equitable caregiver on the basis of the consent of the child’s parent for such individual to have a parental relationship with the child, or on the basis of a written agreement between the individual seeking to be adjudicated as an equitable caregiver and the child’s parent, indicating an intention to share or divide caregiving responsibilities for the child.; (g) The court may enter an order as appropriate to establish parental rights and responsibilities for such individual, including, but not limited to, custody or visitation.
[7]O.C.G.A § 19-7-3.1 (j) The adjudication of a person under this Code section as an equitable caregiver does not disestablish the parentage of any other parent.
[8] (d) In order to establish standing, the court shall first find, by clear and convincing evidence, that the individual 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, the relationship was fostered or supported by a parent of the child, and such individual and the parent have understood, acknowledged, or accepted 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.
[9] O.C.G.A § 19-7-3.1 (h).
[10] O.C.G.A § 19-7-3.1 (b)(1).
[11] O.C.G.A § 19-7-3.1 (b)(2).
[12] O.C.G.A § 19-7-3.1 (b)(4).
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