Legalese — Equitable Caregiver

For many years in my law practice, I have had to disappoint a lot of wonderful people.  These people are step-parents, same-sex partners, and friends and relatives who have stepped in to take over when traditional parents cannot.

Consider this:  Imagine you are a step-father to a little girl who has never known her biological father.  You married her mother when she was a baby, and you love her like she is your own.  She calls you “Daddy” and has never known another.  Suddenly, when she is 13, her mother is killed in a car accident.  Since you are legally unrelated to her, you now have no rights to her and can’t get custody to her.  The child is whisked off to live with an Aunt she barely knows.  The same thing can happen to the other same-sex parent, or when there is a grandparent or a church member or neighbor who has raised a child when the parents simply failed at the task.  You can dream up a hundred scenarios in which these non-relatives, or non-parents would be a much better place for the child than the biological parent or relative.  The child considers these people parents.  The child knows them as Mom or Dad, wants them to hug when things go south, looks to them to set boundaries, and considers their house ‘home.’

Until this year, the law did not allow these people to get custody.  Thankfully, House Bill 543 was passed and signed by the Governor.  It allows for the court to adjudicate a person as an ‘equitable caregiver.’  Under this new law, codified as O.C.G.A. 19-7-3.1, an equitable caregiver is someone who:

  1. “[H]as 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.”

Once the court has found these factors to be in place, the court may then establish parental rights for that person, including custody and visitation.  This doesn’t take away the rights of any biological or legal parent, just adds another person with parental rights.  The theory being, I suppose, that the more people willing to love and support a child, the better.

This law was a long time in coming.  I have personally witnessed too many situations in which a child was separated from a parental figure to the detriment of the child, simply because of a matter of biology and feelings of ill-will brought on by divorce, break-up, or death.  It takes someone special to commit themselves to a child they have no obligation to commit to, to open their hearts that wide.  This law does nothing more than recognize that relationship.

Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.

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