Effective July 1, 2019, Georgia’s Equitable Caregiver Act (the “ECA”) has expanded the classes to whom courts may award custody of a child. The ECA, codified at Section 19-7-3.1 of the Official Code of Georgia, was enacted to bridge a long-recognized gap in our law, which prevented adults who had raised children and bonded closely with them from obtaining child custody, unless the petitioning adults fell within a statutorily limited group of relatives. This article explores the provisions of the ECA and the limitations under prior law which the ECA seeks to address.

Except in cases where both parents of a minor child are not separated and the child is living with both parents, the ECA allows an adult to petition for adjudication as an equitable caregiver.(1) The petitioning adult must first establish his/her standing, either by showing parental consent to have a parental relationship with or share caregiving for a child(2), or by showing by clear and convincing evidence that the petitioner 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; (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.(3)

To determine whether a child will suffer harm if the relationship between the petitioner and child does not continue, the ECA specifies four factors for a court to consider:

(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.(4)

Upon adjudicating a petitioner as an equitable caregiver, a court “may enter an order as appropriate to establish parental rights and responsibilities for such individual, including, but not limited to, custody or visitation.”(5)

Prior to passage of the ECA, the only persons capable of obtaining an award of child custody, other than a child’s parents, were grandparents, great-grandparents, aunts, uncles, great aunts, great uncles, siblings, or adoptive parents.(6) Any other person, irrespective of their existing role in a child’s life, the best interests of the child, or compelling equitable considerations, could not obtain physical or legal custody.(7) Persons who now presumably can seek child custody if they can establish standing as equitable caregivers, but who previously were barred from seeking custody as a matter of law, include stepparents and step grandparents, and even biological parents whose parental rights have been terminated.(8)

The problems seen in pre-ECA law were noted as follows by one appellate court, in reversing a juvenile court’s award of joint custody to the husband of an incarcerated biological mother, after a superior court had legitimated the child’s biological father:

This case illuminates the gaping hole in our family law regarding custody between a biological father and a legal father. The issue is not unusual, as shown by many appellate decisions. Lacking clear statutory direction, the parties and the courts have been left to figure out the best way to address the issue. The parties and both courts in this case acted with the best of intentions, but because the former legal father is not given the same status as a ‘grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent’ under OCGA § 19-7-1(b.1), the juvenile court is left with no discretion to determine which placement would be in the child’s best interest…(9)

Whether the ECA successfully fills the “gaping hole” in our child custody laws, as intended, remains to be seen. That question cannot be answered until cases involving the ECA’s construction and application begin to appear in published appellate decisions.

(1) O.C.G.A. § 19-7-3.1(b) and (h). (2) O.C.G.A. § 19-7-3.1(f). (3) O.C.G.A. § 19-7-3.1(d). (4) O.C.G.A. § 19-7-3.1(e). (5) O.C.G.A. § 19-7-3.1(g). (6) O.C.G.A. § 19-7-1(b.1). (7) See Oni v. Oni, 830 S.E.2d 775, 779-781 (Ga. Ct. App., 2019); and In re C.I., 644 S.E.2d 530, 531-532 (Ga. Ct. App., 2007). (8) See Brock v. Brown, A19A2083 (Ga. Ct. App., March 4, 2020); and Oni, supra; In re C.I., supra. (9) In re C.I., supra, 644 S.E.2d at 532 (footnote omitted).