• kimberly coleman

Georgia's Equitable Caregiver Statute - A Path for Non-Relatives to Obtain Custody/Visitation Rights

On July 1, 2019, Georgia’s new “Equitable Caregiver Statute” (O.C.G.A. § 19-7-3.1) became effective. The Equitable Caregiver Statute expands the categories of individuals who may petition for and obtain custody or visitation rights with regard to a child.

Prior to the passage of the Equitable Caregiver Statute, Georgia law only allowed individuals with a familial relationship to a child to petition a court for custody/visitation rights. Specifically, the categories of individuals entitled to seek custody/visitation rights prior to the passage of the Equitable Caregiver Statute included parents, grandparents, siblings, aunts/uncles, and adoptive parents. Now, however, with the passage of the Equitable Caregiver Statute, third parties who are unrelated to a child may petition a court to establish custody/visitation rights.

To be considered an “equitable caregiver” for purpose of the Equitable Caregiver Statute, an individual must demonstrate 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, 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; and

(4) Accepted full and permanent responsibilities as a parent of the child without expectation of financial compensation. (O.C.G.A. § 19-7-3.1(c)).

Assuming an equitable caregiver satisfies the factors above, he or she must then prove to the court that the child at issue will suffer physical or long-term emotional harm if the relationship between the equitable caregiver and the child does not continue and that vesting the equitable caregiver with custody/visitation rights is in the best interests of the child at issue. (O.C.G.A. § 19-7-3.1(d)).

In deciding whether the child is likely to suffer the sort of physical or long-term emotional harm contemplated by O.C.G.A. § 19-7-3.1(d), the court will consider the following factors:

(1) Identities of the past and present caretakers of the child;

(2) Scope of individuals with whom the child has formed psychological bonds and the strength of those bonds;

(3) Whether competing parties in the litigation 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 to the litigation is better able to meet. (O.C.G.A. § 19-7-3.1(e)).

The Equitable Caregiver Statute is a major development in the body of Georgia law concerning custody and visitation. Now, an adult who is unrelated to the child may seek custody/visitation with that child assuming the foregoing factors are satisfied. The author of the Equitable Caregiver Statute has indicated that said Statute was originally conceived of for purposes of benefitting stepparents of children whose biological parents are no longer living as well as non-biological fathers who take in abandoned children.

Another important effect of the Equitable Caregiver Statute is that it benefits partners to same sex marriages or relationships who do not have a biological relationship with a child. Under the Equitable Caregiver Statute, such an individual is afforded the same treatment as a stepparent in a marriage between individuals of the opposite sex.

While the Equitable Caregiver Statute is so new that no case law applying it exists as of the date of this blog post, individuals who believe they qualify as equitable caregivers and want to seek custody/visitation rights with a child should take advantage of it.

Because the procedure for seeking custody/visitation under the Equitable Caregiver Statute is strict and potentially complicated for a non-lawyer seeking custody/visitation of a child, so individuals who would like to petition for custody or visitation pursuant to the Equitable Caregiver Statute should contact an experienced family law firm like Kimberly Coleman Law to schedule a consultation.

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