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 the first two published equitable caregiver opinions, which were just released within the past month (scroll down).
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, and, if necessary, holds 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 fully adjudicate the issue of equitable caregiver status in accordance with Subsection (d).
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 – 2021:
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 him 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 issue to specific findings of fact to support its order. Rather, as in the instant case, the trial court expressly and appropriately found that by clear and convincing evidence, 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, December 14, 2021.
In this, the first Georgia Supreme Court case in which the constitutionality of the Equitable Caregiver Statute, O.C.G.A. §19-7-3.1, is challenged, the Court never reached the merits of the issues. Instead, because the child at issue is now 18 years old, the Supreme Court declared the appeal moot, and remanded the case to the trial court with direction to dismiss it. The general rule is that a case becomes moot and must be dismissed once the remedy sought no longer benefits the party seeking the remedy. Moreover, there is no reason to believe that the constitutionality issues will evade review. Thus, since the child at issue is now legally an adult and is no longer subject to the custody order on appeal, the case is moot and will be dismissed.
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.
NOTE: On January 11, 2022, the Supreme Court vacated and withdrew the opinion in this case. A new opinion will issue on or before July 1, 2022. Stay tuned!