Rights of Parents vs. Rights of Equitable Caregivers

Last week's Georgia Supreme Court decision (by Presiding Justice Nels Peterson) in Dias v. Boone is 10,000 words long, but here's the summary; the issue arises in many states, often using the label "psychological parent" or "de facto parent" instead of the Georgia "equitable caregiver":

This case presents the question of the constitutionality of OCGA § 19-7-3.1, known as the Equitable Caregiver Statute. Under that statute, a person who is not a legal parent of a child may seek rights such as custody or visitation with the child if he or she proves that certain criteria have been met, including that he or she has undertaken a "parental" role with the child and developed a "bonded and dependent" relationship with the child that "was fostered or supported by a parent of the child[.]"

In this case, a woman who had been in a long-term romantic relationship with a child's legal mother successfully sought relief under the statute after the couple broke up, securing an award of joint legal custody and parenting time. The child's mother has challenged (1) the constitutionality of the statute (both facially and as applied to this case) and (2) the sufficiency of the evidence to support the trial court's order.

We deem it unnecessary to resolve either argument. This case raises serious questions about whether the Equitable Caregiver Statute violates the fundamental right of parents to the care, custody, and control of their children. A possible answer to those questions is that parents may waive their constitutional right at least in some limited fashion through the sort of conduct contemplated by the statute.

But only a knowing and voluntary waiver would suffice, and parental conduct prior to the effective date of the statute could not constitute such a knowing and voluntary waiver. Such an application of the statute also would be in tension with constitutional presumptions against retroactive legislation. And so, based on both the doctrine of constitutional avoidance and those presumptions against retroactivity, we conclude as a matter of statutory construction that OCGA § 19-7-3.1 does not authorize trial courts to confer equitable caregiver status based on conduct by the legal parent that took place prior to the effective date of the statute.

The facts:

The child at issue, "M.D.," was born in October 2010. Appellant Michelle Dias, whose cousin gave birth to M.D., and Dias's romantic partner, Appellee Abby Boone, began caring for M.D. when M.D. was six weeks old. Dias adopted M.D. in March 2011; Boone was not a party to the adoption, but "Boone" was listed as the child's new middle name on the post-adoption birth certificate. Several years later, the couple broke off their romantic relationship. Boone continued to be involved in M.D.'s life after the breakup until 2018, when Dias stopped further contact between Boone and M.D.

And a summary of the statutory scheme:

The statute provides that a court may "adjudicate an individual to be an equitable caregiver." It provides both procedural and substantive requirements for an individual to establish "standing to maintain the action" to be adjudicated as an equitable caregiver. In order to establish standing, the individual seeking equitable caregiver status must establish by clear and convincing evidence each of five statutory prerequisites, showing that 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.

The statute also sets forth factors that the court "shall consider" "[i]n determining the existence of harm[.]" But, as discussed further below, the statute does not specify what circumstances must be the source of that harm for that criterion to be satisfied. The statute provides that "[t]he court may enter an order as appropriate to establish parental rights and responsibilities for such individual" — presumably, someone "adjudicated" as an equitable caregiver — "including, but not limited to, custody or visitation."

Elizabeth S. Pitts (Denny, Pease, Kirk & Morgan) represents Dias.