During a divorce proceeding, it is often the children whose lives are most significantly changed by the disintegration of the family unit. Maintaining close ties with those significant caregivers with whom they are bonded is essential for children’s sense of safety and wellbeing, especially in the presence of conflict and loss.
In July of 2019, a relatively new law called the Equitable Caregiver Act passed in Georgia that recognizes the rights of caregivers who may not be blood relatives to have access or even custody to a child when there is a divorce. For residents of Gwinnett County, this can come as a godsend to caregivers who wish to preserve their bond with a child, especially when this is in the best interests of the child. Getting more information is key to understanding your options and chances for success.
The implications of the law on custody determinations
Before the passage of O.C.G.A. §19-7-3.1, custody and visitation rights were available only to parents and grandparents. But while the law is still relatively new and the extent of its application its application not yet known, it can include extended family such as aunts and uncles and nonblood relatives such as stepparents. For same-sex divorces in which only one spouse’s name appears in the adoption or birth papers, this law offers an avenue for visitation or custodial responsibilities to both.
The procedure for determining equitable caregiver status is two-pronged:
- Establishment through pleadings and affidavits and any other supporting evidence of the petitioner’s status as an equitable caregiver.
- Determination by the trial court of the role the equitable caregiver may have when granting visitation or custodial rights.
An equitable caregiver must show that:
- They have undertaken a permanent and committed parental role in the child’s life.
- Have been a consistent caregiver.
- Have a bonded and established relationship with the child.
- Accept full parental responsibilities without any expectation of financial gain
The best interests of the child
Georgia courts will grant visitation and custody rights to an equitable caregiver based on a standard of what is in the best interests of the child. In deciding on the equitable caregiver’s role, the court may assess the potential harm to the child without the continued relationship to the caregiver, as well as other factors such as:
- Past or present caregivers
- Caregivers with whom the child has psychological bonds
- The child’s unique medical or psychological needs
While it is unclear the extent that the law’s impact will have on future cases, it offers a clear and vitally important opportunity for a caregiver to remain present in the life of a child who needs them.
