May 2019 was a slow month in the Georgia appellate courts for family law related cases. No new custody or visitation cases were released (although April’s Dingle v. Carter was reconsidered and re-issued with revisions). And only one other family law related case was released (see below).
It was, however, a busy month in Georgia Governor Kemp’s office, where he signed into law legislation that will bring significant changes to our custody and visitation law practices. So, this month, instead of case law updates, I review several of the legislative changes that we can expect to see this year.
O.C.G.A. §19-7-3.1 // Equitable Caregivers
This new addition to the Georgia Code is probably the most significant. I predict it will bring on a flurry of custody litigation.
“Equitable caregivers” may now be able to obtain parental rights and responsibilities in custody and visitation cases. O.C.G.A. §19-7-3.1 will be added to the Code, effective July 1, 2019, to provide procedures, factors for consideration, and a clear and convincing standard for “equitable caregivers” to establish standing and parental rights.
Subsection (d) provides that a petitioning “equitable caregiver” will have standing if the trial court finds by clear and convincing evidence that the latter 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.
Subsection (e) provides that in addressing the question of harm to the child, the trial court shall consider 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; and
(4) Whether the child has unique medical or psychological needs that one party is better able to meet.
Other important points:
- Subsection (b) establishes the procedures for determining “equitable caregiver” standing. It is a two-pronged process.
- Subsection (c) provides a suggested form for the petition and affidavit.
- Subsection (h) provides that an original action is not authorized when the child’s parents are not separated, and the child is living with both parents.
- For more, read a complete version of House Bill 543, as passed.
I’m curious about your thoughts on this addition to the Georgia Code. What about child support obligations? Please make your comments below. And, contact me to let me know how I can provide litigation support for you and your custody clients as you navigate your way around this new change to the Georgia Code.
O.C.G.A. §§19-9-22 and 19-9-23 // Child Custody Intrastate Jurisdiction Act
Pursuant to O.C.G.A. §19-9-23, counterclaims for modification of legal or physical custody and visitation will now be permitted in response to complaints for modification of custody. Family law attorneys celebrate this revision to the law since, effective July 1, 2019, it will no longer be necessary to file a separate modification action. Additionally, O.C.G.A. §19-9-22 will be amended by adding definitions for “legal custody” and “physical custody” and by striking the definitions for “legal custodian” and “physical custodian.”
This revision to the Georgia Code should mean greater efficiency in custody cases. Although it is apparent that the legislature intended to allow contempt and enforcement actions to also be pled as counterclaims, the statute is not clear about that. See for yourself in Senate Bill 190, as passed. And, please leave your thoughts below.
O.C.G.A. §30-4-5 // No Discrimination Against Blind Parents in Custody Matters
Georgia now joins other states in statutorily prohibiting discrimination against legally blind persons by the Courts, the Department of Human Services or child placement agencies in child custody, visitation, guardianship, adoption or foster care matters. O.C.G.A. §30-4-5 protects the best interests of children whose parents are legally blind, while safeguarding the parents’ due process and equal protection rights.
This new statute is near and dear to my heart, as I made a plea for this type of legislation in 2017 when I lectured on Parents with Disabilities at the “Not Your Everyday Custody Case” continuing legal education seminar. This statute is a great start! Hopefully, in the future, there will be similar legislation more inclusive of parents with other disabilities.
Some of the significant points in this new law:
- Custody may not be denied to a party simply because the party is blind. Rather, the factors contained in O.C.G.A. §19-9-3(a)(3) may also be considered.
- The party alleging that the opposing party’s blindness detrimentally affects the child has the burden of proof to show by a preponderance of the evidence that the disability is endangering, or will likely endanger the health, safety or welfare of the child.
- If the foregoing burden is met, the parent with impaired vision may show how supportive parenting services can alleviate any issues.
- The trial court may order supportive parenting services.
- The trial court must make specific findings of fact if custody or visitation is denied or limited.
- Effective May 2, 2019. See complete House Bill 79, as passed.
O.C.G.A. §19-6-15 // Child Support Guidelines
The child support guidelines are revised, effective July 1, 2019, by removing the language that imputes income based on a 40 hour work week at minimum wage. Instead, if necessary, the Court should consider the factors included in Subsection (f)(4)(a) to impute income. Additionally, benefits under Title IV-B or IV-E of the Social Security Act and state funded adoption assistance are excluded from gross income. See House Bill 381 for all revisions.
O.C.G.A. §19-7-5(e) and (f) // Protecting Military Children Act
Child welfare agencies shall make efforts to determine whether the parent or guardian of a child subject of abuse allegations is on active duty in the United States armed forces. If so, the agency shall notify the military family advocacy program of the allegations. Effective July 1, 2019. See House Bill 64, as passed.
O.C.G.A. §§19-3-2 and 19-3-30.1 // Minimum Age for Marriage Changed from 16 Years to 17 Years
A minor child must be 17 years of age and emancipated, and must complete a pre-marital education course before a he/she can obtain a license to marry. Effective July 1, 2019. See House Bill 228, as passed.
Family Law Related Cases Released in May 2019:
In the Interest of A.B., et al., children, Case No. A19A0147, Georgia Court of Appeals, May 15, 2019.
In the Interest of K.B., Case No. A19A0148, Georgia Court of Appeals, May 15, 2019.
A dependency order must contain sufficient findings of fact, and separate conclusions of law, in accordance with O.C.G.A. §9-11-52(a). Also, a party to a dependency proceeding has the right to an attorney, but must use reasonable diligence in timely obtaining chosen retained counsel.
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