The Door Opens Wider: the Rights of Non-biological Parents to Claim Custody Just Expanded

• Publication year: 2022

The Door Opens Wider: The Rights of Non-Biological Parents to Claim Custody Just Expanded

James J. McGinnis

Charles V. Crowe

Andrew B. McClintock

[Page 983]

The Door Opens Wider: The Rights of Non-Biological Parents to Claim Custody Just Expanded
James J. McGinnis^*

Charles V. Crowe^**

Andrew B. McClintock^***

I. Introduction

In the summer of 2013, Susan Hill and Amy Burnett exchanged wedding rings in North Carolina. Though same-sex marriage was not yet legal in most states (North Carolina included), Hill and Burnett moved forward to live together as spouses and began making plans to grow their family. Later in 2013, Burnett began trying to become pregnant. Both women contributed to the cost of the procedures designed to promote pregnancy and, in 2014, Burnett became pregnant with twin girls.¹

During Burnett's pregnancy, Hill attended birthing classes, purchased items for the nursery, and took part in other sundry tasks that ordinarily precede the birth of children. In late 2014, Hill was present when Burnett gave birth to two baby girls and the parties met

[Page 984]

with an adoption attorney shortly thereafter to discuss Hill adopting the children (although no adoption was ultimately finalized).²

The parties continued to live together for nearly two more years, during which time Hill helped care for the children, provided clothing and necessities for the children, and developed a bond with the children. The women agreed that Hill would be called "Momma," and Burnett gave Mother's Day cards to Hill.³

In June 2016, the women's relationship ended, and Burnett and the children moved out of the parties' residence. During this time, Burnett continued to send Hill photographs of the children and referred to Hill as "Momma." Later that year, Hill filed suit in the Superior Court of Cobb County, Georgia seeking legitimation and establishment of custody and parenting rights. Since no legal basis existed for an unwed parent to claim custodial rights to a child who was not their biological offspring, Hill pled her case on theories of implied contract, promissory estoppel, and constitutional rights.⁴

The trial court dismissed Hill's action for lack of standing as Hill was neither a biological parent of the children, nor an adopted parent of the children. The trial court also sanctioned Hill by ordering her to pay Burnett's attorney's fees pursuant to O.C.G.A. § 9-15-14(a)⁵ which provides:

[R]easonable and necessary attorney's fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.⁶

Though the attorney's fee award was reversed in part on appeal, Hill had no choice but to live with the trial court's ruling that she lacked any standing to petition for custodial rights to children she helped raise and who had once called her "Momma."⁷ Such was the case for numerous other non-traditional parents at the time who found themselves on the receiving end of Georgia's often harsh child custody laws. However, it

[Page 985]

was the hope of many Georgia legal advocates and legislators that this would soon change.

As courts and state legislatures nationwide began to recognize the need to accommodate modern family structures, many states began to establish, either through the legislature or through the courts, an avenue for individuals who have acted in a parental role to a child to seek and obtain formal custodial or visitation rights to the child even without a biological or other recognized legal relationship.

On July 1, 2019, Georgia joined many other states with the enactment of the Adjudicated Equitable Caregiver statute.⁸ The statute was sponsored by Chuck Efstration (R-Dacula) and passed by the Georgia General Assembly in April 2019 by a vote of 152 to 3, with 15 not voting.⁹ The statute, which officially took effect on July 1, 2019, permits a person who demonstrates an established parental role to petition the court for a determination that they are an "equitable caregiver" to the child; once that determination is made, the court may award visitation or even custodial rights—and responsibilities—to the equitable caregiver.¹⁰

II. What is the Adjudicated Equitable Caregiver Act?

In brief, the Adjudicated Equitable Caregiver Act authorizes Georgia Superior Courts to grant custody or visitation rights to third parties who have acted in a dedicated parental role to a minor child, even though they may not have a formal legal or biological relationship.¹¹ Prior to its enactment, the right of custody was restricted to a few specific classes of people. Legal parents—the parents of children born in wedlock, and the biological fathers of children born out of wedlock who have sought legitimation—are entitled to custody and to exercise parental power over their minor children until and unless their parental rights and relationship is terminated by the operation of law.¹² Adoptive parents enjoy full parental and custodial rights once the adoption process is complete, and the rights of the biological/former parents are terminated.¹³ Certain close family members (grandparents, great-grandparents, aunts, uncles, great-aunts, great-uncles, siblings, and adoptive parents) are also statutorily authorized to seek custody only upon a loss of parental power and a showing that the removal of

[Page 986]

custody from the legal parents is in the best interests of the children.¹⁴ Additionally, another statute commonly referred to as the "grandparent visitation statute,"¹⁵ authorizes grandparents to file an original action for visitation (but not custody) with a minor grandchild¹⁶ and authorizes grandparents, great-grandparents, and siblings of a minor child to intervene and seek visitation rights where custody, termination of parental rights, or visitation is already at issue in litigation.¹⁷ Legitimation, which is necessary for a biological parent who is not a legal parent to pursue before they may seek custodial rights, is an avenue available only to biological fathers by the express terms of Georgia's legitimation statute.¹⁸

As the modern family has evolved, and especially in the wake of the Supreme Court of the United States' decision legalizing same-sex marriage in Obergefell v. Hodges,¹⁹ serious cracks and gaps have begun to appear in the coverage of the traditional custody framework discussed above. Stepparents, for example, do not fall within the categories of relatives that are permitted to seek custodial rights under O.C.G.A. § 19-7-1 or visitation rights under O.C.G.A. § 19-7-3; in the absence of an adoption, which is not possible while both legal parents retain their parental rights, a stepparent could be left with no enforceable legal right to their stepchildren if something were to happen to the legal parent spouse.²⁰ Even if the stepparent had maintained a dedicated and committed parental role to their stepchild for the balance of the child's life, divorce, or the death of the legal parent spouse could deprive the stepparent entirely of any enforceable right to see the child or maintain the relationship. Same-sex couples faced similar risks: if only one partner had a biological relationship to the child, the only established path for the non-biological parent to obtain formal custodial or visitation rights was adoption. If for whatever reason adoption was not possible, the non-biological parent could be left without any legally cognizable relationship to the child if something happened to the biological parent or the parents separated.

[Page 987]

The Equitable Caregiver Act represents an attempt to bridge that gap, in that it permits any individual, regardless of biological relationship, to seek custodial and visitation rights with a minor child provided that they demonstrate standing under the criteria set forth in the statute, which is discussed below.²¹ This provides an avenue for those categories of caregivers discussed above—stepparents, same-sex partners or spouses, and other close family members or friends who may not fit into the traditional relationship roles contemplated under Georgia's previous custody framework—to formally protect their relationships with the children they have raised and cared for as their own.

III. How Does the Adjudicated Equitable Caregiver Act Work?

O.C.G.A. § 19-7-3.1 sets forth the entire petition and procedural framework for an individual seeking adjudication as an equitable caregiver.²² The statute contemplates a two-part process. First, the petitioner must establish standing by demonstrating by clear and convincing evidence 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, 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.²³

In assessing the harm element of subsection (d)(5), the statute further provides that the court should consider:

(1) Who are the past and present caretakers of the child;

[Page 988]

(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

...