On July 1, 2019, O.C.G.A. §19-7-3.1, the Equitable Caregiver Statute, became law in Georgia. The enactment of this statute opened up a new avenue for third parties to obtain custody and visitation rights, without disestablishing the rights of the child’s parents. Now, some of the cases filed pursuant to the statute are coming down the appellate pipeline.
This Special Edition of Case Law Updates reviews the Equitable Caregiver Statute, and published equitable caregiver opinions. Come back often, and scroll down, as newly released opinions are added as they are released.
O.C.G.A. §19-7-3.1 // Equitable Caregivers
Equitable caregivers may be able to obtain parental rights and responsibilities in custody and visitation cases. O.C.G.A. §19-7-3.1, effective July 1, 2019, provides the procedures, factors for consideration, and a clear and convincing standard to establish equitable caregiver standing and parental rights.
Subsection (b) provides for a two pronged procedure to establish standing and maintain an action to be adjudicated as an equitable caregiver. In the first prong, the trial court considers the pleadings and affidavits filed by both parties. If necessary, the trial court may have an expedited hearing to determine facts material to the issue of standing. The trial court must then determine whether the petitioner has presented prima facie evidence of the requirements contained in Subsection (d) to support the existence of an equitable caregiver relationship with the child. If the answer is in the affirmative, the petitioner has standing to advance to the second prong, and to fully litigate the issue of equitable caregiver status.
Subsection (c) provides forms for the pleadings and affidavits required in Subsection (b).
Subsection (d) provides that a petitioning equitable caregiver will have standing if the trial court finds by clear and convincing evidence that the petitioner 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.
Subsection (f) provides that the trial court may grant equitable caregiver standing on the basis of a consent by the child’s parent and the equitable caregiver, or a written agreement to share or divide parenting responsibilities.
Subsection (g) provides that the court may enter an order establishing parental rights and responsibilities for the equitable caregiver, including, but not limited to custody and visitation.
Subsections (h) and (i) disallows equitable caregiver actions when the child is living with both parents who are not separated, and when the petitioner’s relationship with the child is the result of a DFCS placement.
Subsection (j) provides that the adjudication of an equitable caregiver does not disestablish the parentage of any other parent.
For a complete copy of O.C.G.A. §19-7-3.1, click here.
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Equitable Caregiver Case Law:
Skinner v. Miles, Case No. A21A0980, Georgia Court of Appeals, October 4, 2021.
After years together in a committed relationship, in 2009, Skinner and Miles adopted a baby in Texas. Skinner, however, was the only named parent on the paperwork since Texas did not recognize adoptions by same-sex couples. Shortly thereafter, Skinner gave birth to another baby conceived by artificial insemination. Miles participated in the adoption process, and she supported Skinner’s efforts to become pregnant. In recognition of her role in the children’s lives, Skinner used Miles’ surname as both children’s middle names. Miles also shared in raising, caring for and providing support for the children, who called her “Momma” or “Mombo.”
However, in 2015, Miles and Skinner separated. Thereafter, Miles continued to visit with the children, take them on vacations and attend their activities, and in 2017, she and Skinner entered into a “Visitation Arrangement.” Yet, in July 2019, when O.C.G.A. §19-7-3.1 became effective, Miles petitioned to be recognized as an equitable caregiver and for visitation and custody rights. The trial court ruled in Miles’ favor, finding that she had a strong bond and ongoing relationship with both children, and that the children would suffer long term emotional harm if she is not granted equitable caregiver status. Skinner appealed.
Affirmed. As noted in the above summary of the Equitable Caregiver Statute, custody disputes filed pursuant to O.C.G.A. §19-7-3.1 undergo a two-pronged analysis. The trial court must first make a determination, based on the parties’ pleadings and affidavits, as to whether the petitioner has presented prima facie evidence of standing to pursue equitable caregiver status. If the answer is in the affirmative, the petitioner can proceed to fully adjudicating the issue. In this, the second prong, the trial court must find, by clear and convincing evidence that the petitioner satisfies all of the required elements of O.C.G.A. §19-7-3.1(d). If the answer remains in the affirmative, the trial court may designate the petitioner as an equitable caregiver, and enter an order establishing parental rights and responsibilities, including custody and visitation.
In the instant case, the record supports the trial court’s designation of Miles as an equitable caregiver, and the implementation of a parenting plan. Firstly, the evidence was clear and convincing that Miles had undertaken a permanent, unequivocal, committed and responsible parental role in the children’s lives. O.C.G.A. §19-7-3.1(d)(1). In addition to other factors, she was listed on the children’s school and medical forms until after she and Skinner separated, and she attended extracurricular events. Miles also provided Skinner with financial support pay for the children’s needs, both before and after the separation. Finally, the testimony was that Skinner gave Miles’ surname as both children’s middle names to recognize Miles’ role in the children’s lives.
Next, Subsection (d)(2) requires evidence that Miles consistently engaged in the caretaking of the children. The evidence was that she fed, bathed and generally cared for the children, and that she drove them to activities and met with their teachers. Moreover, as required by Subsection (d)(3), the evidence was that Miles and the children were bonded. The children called Miles “Momma” or Momba” and the Guardian ad Litem also testified about the bond. Moving on to Subsection (d)(4), the evidence established that Miles accepted full and permanent responsibilities as a parent with no expectation of financial compensation.
Finally, the trial court found, in accordance with O.C.G.A. §19-7-3.1(d)(5), that the children will suffer long-term emotional harm if Miles is not granted equitable caregiver status, and that continuing their relationship with Miles is in their best interests. In making its determination of harm, the trial court heard testimony that Miles was a caretaker for both children; that they had formed a bond; that the children considered Miles a parent; and that Miles demonstrated her desire to maintain her relationship with the children by continuing to visit, vacation and do activities with them, even after she and Skinner separated. Accordingly, the trial court did not err in designating Miles as an equitable caregiver, as the evidence was clear and convincing that she satisfied all of the required elements of O.C.G.A. §19-7-3.1(d).
Teasley v. Clark, Case No. A21A1017, Georgia Court of Appeals, November 1, 2021.
B.T., the minor child at issue in this case, lived with his mother until her death in 2020. Teasley is B.T.’s father. Clark is his stepfather. Clark first became involved with B.T.’s mother in 2010, when B.T. was one year old, and he married her in 2013. They had another child, B.T.’s half-brother, in 2016. Following B.T.’s mother death in 2020, B.T. went to live with Teasley. Thereafter, Clark filed the instant action pursuant to O.C.G.A. §19-7-3.1 to obtain custody and visitation rights. He alleged that over the years, he cared for and provided support for B.T., and that he and B.T. had developed a parent/child bond. Following an evidentiary hearing the trial court entered an order establishing Clark’s standing as an equitable caregiver, and a separate order awarding him temporary visitation rights. Teasley appealed.
Affirmed. Teasley challenged the constitutionality of O.C.G.A. §19-7-3.1 on appeal. However, even if he raised the issue on the trial level, the trial court did not rule on it. Thus, Teasley cannot raise that issue in this appeal. Moreover, contrary to Teasley’s contention, the trial court did not err by not making specific findings of fact to support its conclusions. Similar to most domestic relations statutes in Georgia, O.C.G.A. §19-7-3.1 does not require the trial court to issue specific findings of fact to support its order. Rather, as in the instant case, the trial court expressly and appropriately found by clear and convincing evidence, that Clark satisfied all of the elements required in O.C.G.A. §19-7-3.1(d). Nothing more was necessary.
McAlister v. Clifton, Case No. S22A0144, Georgia Supreme Court, April 19, 2022.
McAlister and Clifton are former domestic partners. McAlister adopted a child who Clifton never formally adopted. The parties eventually separated, entering into an agreement allowing visitation for Clifton, and requiring her to pay certain school expenses. A few years later, McAlister began denying visitation, and Clifton stopped paying school expenses. Clifton petitioned for visitation pursuant to the equitable caregiver statute, OCGA §19-7-3.1. McAlister counterclaimed for school expenses. Just days before the child’s eighteenth birthday, the trial court found that Clifton had standing as an equitable caregiver, awarded her parenting time, and denied McAlister’s counterclaim. McAlister appealed, challenging the constitutionality of the equitable caregiver statute. The Court of Appeals transferred the appeal to the Supreme Court. In December 2021, the Supreme Court remanded the case to the trial court with instructions to dismiss it. However, upon reconsideration, the Court vacated and withdrew its opinion, and substituted it with this one.
Affirmed in part, vacated in part and remanded with direction. In this first Supreme Court challenge to the constitutionality of the equitable caregiver statute, the Court did not reach the issue, and instead declared it moot. Notably, since the child is now 18 years old, the trial court’s award of parenting time has terminated by operation of law. Moreover, since the trial court awarded Clifton no rights other than the visitation, McAlister was unable to show that the award would have continuing adverse collateral consequences affecting the child in an ongoing probate court guardianship case. Furthermore, the question of the statute’s constitutionality will likely be raised again in another appeal, and thus likely will not evade review. Accordingly, McAlister’s challenge to the constitutionality of O.C.G.A. §19-7-3.1 is moot.
Additionally, the trial court did not err in denying McAlister’s counterclaim for school expenses. Indeed, McAlister failed to provide convincing evidence of damages, an essential element of her claim. She produced no checks or other evidence that she paid the school expenses. Moreover the trial court found her testimony that she paid the expenses not credible.
Originally filed in the Georgia Court of Appeals, this case was transferred to the Georgia Supreme Court. To watch the oral arguments in the Court of Appeals, click here.
In the Interest of K.L., a child, Case No. A21A1233, Georgia Court of Appeals, February 11, 2022.
After K.L. and his half siblings were adjudicated dependent, they were ultimately placed in the custody of the half-siblings’ paternal relatives, the Stathams. The children’s Mother also signed a Consent Agreement placing the children in the Stathams’ temporary custody, but retaining certain parental rights. Eventually, the trial court granted custody of the half-siblings to the Stathams pursuant O.C.G.A. §19-7-1(b.1), noting that the statute did not authorize awarding custody of K.L. to a non-relative. Almost two years later, the Mother petitioned to have K.L. returned to her custody. The Stathams responded by petitioning for custody under O.C.G.A. §19-7-3.1, the equitable caregivers statute. The trial court found that it never had jurisdiction over K.L. in the dependency action, and thus, Mother legally had custody of K.L. The court also denied the Stathams’ petition seeking standing as an equitable caretaker. The Stathams appealed.
Affirmed. Subsection (d)(3) of O.C.G.A.§19-7-3.1, the equitable caregiver statute, required the Stathams to show, by clear and convincing evidence, that Mother “fostered or supported” their relationship with K.L., and that she “understood, acknowledged or accepted that or behaved as though [the Stathams are parents] of the child.” The Stathams were unable to carry that burden. Rather, the consent agreement that Mother signed years earlier was only temporary, and provided for Mother regaining custody. Moreover, the evidence was that Mother was upset when the Stathams usurped her role as parent, and that the Stathams and Mother always made sure that K.L. knows that Mother is his parent. Accordingly, the trial court did not err in declining to find that the Stathams had standing to seek custody as equitable caregivers.
Hackett v. Stapleton et al., Case No. A22A0773, August 26, 2022.
When the minor child was six months old, his grandmother obtained guardianship. Shortly thereafter, without a court order, the grandmother gave primary care of the child to the Stapletons. Over the years, Hackett visited with her son. The biological father also periodically visited, and he paid court-ordered child support. When the child was nine years old, Hackett refused to return him after a visit. The Stapletons sought and obtained expedited temporary sole legal and physical custody of the child. They also petitioned for equitable caregiver status, and for permanent custody. Additionally, the biological father petitioned to legitimate the child. A Guardian ad Litem (GAL) recommended that Hackett have custody of the child, that he be legitimated, and that the Stapletons and the father have visitation. Instead, the trial court denied the legitimation, granted the Stapletons status as equitable caregivers with legal and physical custody, with Hackett having visitation. Hackett appealed.
By clear and convincing evidence, the Stapletons satisfied the elements required by O.C.G.A. §19-7-3.1. Specifically, the evidence was that they were fully committed to their parenting role, had consistently cared for the child, and had established a bond with him. Moreover, the evidence was that Hackett allowed the custodial relationship to continue for many years, and therefore fostered or supported it. Additionally, the grandmother kept the child support payments, so the Stapletons were not financially compensated for undertaking the parental responsibilities. Finally, the child’s therapist testified that the child may suffer long term emotional harm if his relationship with the Stapletons was discontinued. The GAL, however, testified that there was no evidence that harm would come to the child in Hackett’s custody.
The adjudication of the Stapletons as equitable caregivers does not divest Hackett of her parentage. Rather, pursuant to O.C.G.A. §19-7-3.1(g), once the Stapletons were given equitable caregiver status, the trial court was authorized to enter an order establishing their parental rights and responsibilities, including custody and visitation. For guidance on resolving custody disputes in equitable caregiver cases, the trial court should look to the best interests of the child factors contained in O.C.G.A. §19-9-3(a)(2). In the instant case, the evidence was contrary to the trial court’s finding that the child would suffer long term harm if he was returned to his mother’s custody. Accordingly, the Court of Appeals remanded the case to the trial court for consideration of the statutory best interests factors. The Court also noted that joint custody may be a possible alternative for the trial court to consider.
Finally, the trial court did not err in denying the biological father’s petition to legitimate after finding that he had abandoned his opportunity interest in developing a relationship with the child. The father did not provide support or assume any responsibility for the child until after his birth, and he only provided child support after he was court-ordered to do so. Moreover, the biological father waited until the child was nine years old to file his legitimation petition, and he did not maintain consistent contact with the child until then.
McDonald v. Reyes, Case No. A22A1015, August 31, 2022.
McDonald is the mother of the two minor children at issue in this case. Reyes is McDonald’s former step-father. In 2018, while she was incarcerated, McDonald requested her attorney to facilitate placement of the children in the temporary custody of Reyes, who was then married to her mother (now divorced). The children have been in his custody since. In 2019, Reyes petitioned for equitable caregiver status pursuant to O.C.G.A. §19-7-3.1, and for permanent custody of the children. The trial court denied McDonald’s subsequent motion to dismiss, adjudicated Reyes to be an equitable caregiver, and granted physical and legal custody of the children to him. McDonald appealed.
Reversed. Under O.C.G.A. §19-7-3.1, a person may petition for standing as an equitable caregiver, and for rights relating to the child, including custody. Subsection (i) of the code section, however, provides that an equitable caregiver action is not authorized when the Division of Family and Children Services (DFCS) “has an open child welfare and youth services case involving such child or his or her parent” (emphasis added). In the instant case, there was no open DFCS case involving the children at issue. McDonald, however, was the subject of an open DFCS investigation involving other children. Thus, in accordance with O.C.G.A. §19-7-3.1(i), even though the children in the instant case were not the subject of the open DFCS investigation, McDonald was, so the trial court should have dismissed Reyes’ petition.
Denise Wilkinson et al. v. Joseph Richello, Case No. A23D0070, October 12, 2022.
The trial court dismissed the Wilkinsons’ petition pursuant to O.C.G.A. §19-7-3.1(g) to be adjudicated as equitable caregivers and granted visitation . The Wilkinsons filed an application for discretionary review of the trial court’s dismissal.
Under O.C.G.A. §5-6-34(a)(11), judgments and orders awarding, modifying or refusing to modify child custody and visitation are directly appealable. Thus, since the trial court’s order is subject to direct appeal, the Wilkinsons’ application for discretionary appeal is accepted.