O.C.G.A. § 19-7-3.1 (2019)
Equitable caregivers; form; required findings; establishment of parental rights; not a disestablishment of parentage
(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:
(1) File with the initial pleading an affidavit alleging under oath specific facts to support the existence of an equitable caregiver relationship with the child as set forth in subsection (d) of this Code section. The pleadings and affidavit shall be served upon all parents and legal guardians of the child and any other party to the proceeding;
(2) An adverse party, parent, or legal guardian who files a pleading in response to the pleadings in paragraph (1) of this subsection shall also file an affidavit in response, serving all parties to the proceeding with a copy;
(3) The court shall determine on the basis of the pleadings and affidavits pursuant to paragraphs (1) and (2) of this subsection whether such individual has presented prima facie evidence of the requirements set forth in subsection (d) of this Code section. The court may in its sole discretion, if necessary and on an expedited basis, hold a hearing to determine undisputed facts that are necessary and material to the issue of standing; and
(4) If the court’s determination under paragraph (3) of this subsection is in the affirmative, the party claiming to be an equitable caregiver has standing to proceed to adjudication under subsection (d) of this Code section.
(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: “IN THE
COURT OF STATE OF GEORGIA A.B., Plaintiff ) ) v.
) ) ) Civil Action File no.
C.D., Defendant ) ) COMPLAINT The defendant C.D., herein named, is a resident of (street), , (city) County, Georgia, and is subject to the jurisdiction of this court. As of court that he or she:
(date), Plaintiff can fully demonstrate to the 1. Has 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, which relationship was fostered or supported by a parent of the child, and Plaintiff and the parent have understood, acknowledged, or accepted that or behaved as though Plaintiff is a parent of the child; and 4. Accepted full and permanent responsibilities as a parent of the child without expectation of financial compensation. The facts of the case are: 1. 2. 3. 4. Dated Pro Se Applicant Address Address (CERTIFICATE OF SERVICE)” “AFFIDAVIT OF PETITIONER STATE OF GEORGIA COUNTY OF Personally appeared before me, the undersigned officer duly authorized to administer oaths, , who, after having been sworn, deposes, and says as follows: That my name is: That my address is: These are the facts to support the existence of an equitable caregiver relationship with a child as set forth in subsection (c) of O.C.G.A. 19-7-3.1: Dated Pro Se Applicant Address Address Sworn to and subscribed before me this day of , .
Notary public (SEAL) My commission expires:
(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, which relationship was fostered or supported by a parent of the child, and such individual and the parent have understood, acknowledged, or accepted that 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.
(e) 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; and
(4) Whether the child has unique medical or psychological needs that one party is better able to meet.
(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.
(h) This Code section shall not authorize an original action when both parents of the minor child are not separated and the child is living with both parents.
(i) This Code section shall not authorize an original action by an individual whose relationship with the child was established as a result of a proceeding under Article 3 of Chapter 11 of Title 15 and shall not authorize an original action so long as the Division of Family and Children Services of the Department of Human Services has an open child welfare and youth services case involving such child or his or her parent.
(j) The adjudication of a person under this Code section as an equitable caregiver does not disestablish the parentage of any other parent.
History
Code 1981, § 19-7-3.1, enacted by Ga. L.
2019, p. 632, § 1/HB 543; Ga. L. 2020, p. 493, § 19/SB 429.
The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, revised language and punctuation in subsection (c) and paragraph (d)(3).
Annotations
Law reviews. For annual survey on domestic relations, see 71 Mercer L. Rev. 83 (2019).
For article, “2019 Legislative Review,” see 24 Ga. St. B.J. 28 (June 2019). For article with annual survey on domestic relations, see 73 Mercer L. Rev. 89 (2021).
JUDICIAL DECISIONS Non-relative couple lacked standing to seek custody. - Judgment awarding a couple custody of a minor child was reversed because the couple, as third party non-relatives, did not have standing to initiate the proceedings in superior court seeking custody of the minor child who had been placed by another court, at least temporarily, in their custody. Wallace v. Chandler, 360 Ga. App. 541, 859 S.E.2d 100, 2021 Ga. App. LEXIS 199 (2021). Award of temporary visitation to stepfather upheld. - Award of temporary visitation rights as an equitable caregiver to a child’s stepfather was upheld because case law relied upon by the challenging father was decided before the equitable caregiver statute, O.C.G.A. § 19-73.1, and the statute imposed no duty on the trial court to issue specific findings of fact in support of the court’s rulings. Teasley v. Clark, 361 Ga. App. 721, 865 S.E.2d 556, 2021 Ga. App. LEXIS 544 (2021). Same-sex partner was equitable caregiver. - In an action under the Equitable Caregiver Act, O.C.G.A. § 19-73.1, the record supported the court’s rul-
ing that appellee satisfied, by clear and convincing evidence, all of the required elements of the statute, and that the court did not err in designating her an equitable caregiver as the evidence showed that appellee served as a parental figure for both children, appellee assisted in feeding, bathing, changing, and generally caring for the children. appellee’s surname was used as the children’s middle names in light of appellee’s role in their lives, and appellee was strongly bonded with both children. Skinner v. Miles, 361 Ga. App. 764, 863 S.E.2d 578, 2021 Ga. App. LEXIS 479 (2021). Order vacated after child became adult. - Because the child was now an adult, having turned 18 years old prior to the docketing of the appeal, the adoptive mother’s challenge to the award of visitation rights to the former domestic partner was moot; thus, those portions of the orders addressing the constitutionality of the equitable caregiver statute, O.C.G.A. § 19-7-3.1, as well as an award of visitation, were vacated. McAlister v. Clifton, 2022 Ga. LEXIS 114.