On July 1, 2019, the Equitable Caregiver statute in Georgia became law. This law permits an additional method for third parties to obtain custody and visitation rights, without terminating the rights of the child’s parents. The Act allows for someone who has been taking care of a child in a competent and consistent manner to apply for custody of the child. This is available to third parties without proceeding with an adoption action.
Equitable caregivers may be able to obtain parental rights and responsibilities in custody and visitation actions. The statute provides the procedures, the factors that the court must consider, and a clear and convincing standard to establish equitable caregiver standing and parental rights.
The statute provides for a two-step process to establish standing and maintain an equitable caregiver action. First, the court considers the pleadings and affidavits filed by the parties. The court may decide to have a hearing to determine facts that are material to the issue of standing. The statute makes clear that the third party must present clear and convincing evidence in order to support the request to establish an equitable caregiver relationship with the child. If the evidence has, the third party may proceed to the second step.
Second, the statute provides that the court may grant equitable caregiver standing on the basis of a consent by one of the child’s parents and the equitable caregiver, or a written agreement to share or divide parenting responsibilities. The court may enter an order establishing parental rights and responsibilities for the equitable caregiver, including custody and visitation.
To be considered a caregiver, you must have been taking care of the child already in a permanent manner, acting as the parent without the legal status. Your role as the caregiver has to be complete and consistent. In addition, you must have provided this consistent care without receiving any compensation and you must have established a bond with the child. The child needs to be dependent on you and the child would suffer if you were no longer the caregiver. The court considers the best interests of the child.
Benefits of this proceeding: If you are grandparent who wants full legal custody of the child, this Act can make it easier. For stepparents who have divorced or separated from the child’s biological parent, this is also the option they have to become caregivers for the child. In addition, if a biological parent has died, the stepparent can proceed in order to obtain legal parents to the child.
If a biological parent has not consented to the caregiver action, the process will be more difficult. Unless the parent is unfit to care for the child, the court will generally consider them as the caregivers. The Act does not terminate the parental rights of the biological parents.