Turner Padget Insights
Using Georgia's Equitable Caregiver's Statute for Grandparent Custody Cases
Posted On September 17, 2024
It is estimated that over 90,000 grandparents are responsible for their grandchildren in Georgia alone, and that number is certainly growing. Gone are the days of the Cleavers representing the societal “norm” when it comes to family composition. Instead, recent years have demonstrated the unwavering commitment of extended family members, often grandparents, to care for and raise young children when parents are unable or unwilling to do so.
There are a multitude of reasons why grandparents ultimately step in to raise their grandchildren. And while the reasons may vary, the struggles accompanying this reality are more consistent. How can I get my grandchild into counseling? How can I register my grandchild for school? How can I ensure that my grandchild remains safely in my home? These are all common stressors carried on the shoulders of grandparents raising their grandchildren, often for many years, but who do not have custody of their grandchildren under Georgia law.
Thankfully, grandparents do indeed have the ability to seek legal and physical custody of their grandchildren in the state of Georgia. Under Georgia law, a grandparent can seek custody of a grandchild using the Relative Custody Statute (OCGA § 19-7-1(b.1)) or the Equitable Caregivers Statute (OCGA § 19-7-3.1). In doing so, under either statute, grandparents must successfully rebut the presumption that being with a parent is in a child’s best interest.
The Relative Custody Statute allows grandparents, great-grandparents, siblings, aunts, uncles, great aunts, and great uncles to obtain custody of a minor child, if 1) it is in that child’s best interest; and 2) if it will promote the child’s welfare and happiness. Ultimately, the inquiry under this statute is the child’s best interest.
The Equitable Caregivers Statute allows individuals not biologically related to a child to seek custody of that child. Within the context of grandparent custody, this statute can be particularly helpful as it relates to step-grandparents, who may not be biologically related to the child but have more than earned the title of grandmother or grandfather. Under the Equitable Caregivers Statute, a third party must demonstrate by clear and convincing evidence, that he or she has:
- Fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life; AND
- Engaged in consistent caretaking of the child; AND
- Established a bonded and dependent relationship with the child, which 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; AND
- Accepted full and permanent responsibilities as a parent of the child without expectation of financial compensation; AND
- 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.
While the practical and procedural requirements associated with the Equitable Caregivers Statute are objectively more laborious, the statute allows for the all too often forgotten category of step-grandparents to obtain legal custody of their step-grandchildren despite the absence of a biological relationship.
Regardless of the avenue chosen by a third-party caregiver to pursue legal and physical custody of a minor child, the importance of understanding the legal process, the potential hurdles, and the potential benefits cannot be overstated.
Jacqueline G. Thomas is a family law attorney based in Turner Padget’s Augusta, Georgia, office.
