Georgia Supreme Court Should Leave Child Custody Law for Caregivers Alone

Should Parents Have Custody Based on legal fictions or time spent with a child? The Georgia Legislature recognized that time and care create a child-parent relationship when it passed the Equitable Caregiver Act in 2019. The Georgia Supreme Court has threatened to revoke that law despite how damaging it may be to a child’s best interests.

The child “MD” was born in October 2010. Michelle Dias’s cousin gave birth to M.D. Dias and her then romantic partner, Abby Boone, began caring for M.D. when M.D. was six weeks old. Dias adopted MD in March 2011. Boone was not a party to the adoption, but “Boone” was MD’s middle name on the post-adoption birth certificate. Several years later, the couple broke off their romantic relationship. Boone continued to be involved in MD’s life after the breakup until 2018, when Dias stopped further contact between Boone and MD.

Boone filed a lawsuit seeking joint physical and legal custody of and parenting time with M.D. Abby Boone asked the lower court to give her equitable caregiver status to Michelle Dias’s minor child. The trial court decided that Boone had presented clear evidence that the child would suffer emotional harm if the relationship were discontinued. The court required both women to follow a parenting plan. Dias appealed the constitutionality of the Equitable Caregiver Act.

The Equitable Caregiver Act allows a judge to give joint custody over a former lover’s child. That person must persuade the court that he or she had a “parental” role and a “bonded and dependent” relationship with the child that was “fostered or supported” by a parent of a child.

The Georgia Supreme Court, in a unanimous decision, ruled in favor of Dias and reversed the trial court’s decision. The justices determined that the Equitable Caregiver Act did not apply to their case because Boone’s relationship with the child predated the passage of the Act. The high court did not overturn the law, but expressed concern that the statute “violates the fundamental right of parents to the care, custody, and control of their children.”

Parental Rights Must Be Secondary to the Child’s Best Interests

Dias’s challenges to the Equitable Caregiver Act are based on the premise that the right of fit parents to the care, custody, and control of their children is secured by both the United States Constitution and the Georgia Constitution. The Georgia Supreme Court has previously held that custody may not be awarded to a third party “in the absence of a voluntary relinquishment of parental rights, parental abandonment or unfitness, or other exceptional cause, established by clear and strong evidence.” Courts traditionally presume “that a fit parent will act in the best interest of his or her child.”

This concept of parental “fundamental rights” is deeply flawed. First, the United States Constitution doesn’t talk about parental rights anywhere in its four corners. The Georgia Supreme Court is reading the 5th Amendment due process clause to support parental rights. However, given that the United States Supreme Court has recently reversed abortion rights, which were also underpin on due process, any reliance on fundamental rights in the United States Constitution when the explicit text doesn’t reference such rights is a risky proposition at best.

Second, one adult having parental rights does not automatically violate the parental rights of another adult. Most children have at least two parents. The fact that one parent has a parental role does not void the parental role of another. This false premise only highlights why the best interests of the child must be paramount and independently checked by the court rather than presumed simply because a parent may be “fit.”

Parents only have a “fundamental right” to their children to the extent it in the child’s best interests. However, children are independent people from their parents, even if they are initially completely dependent on their parents during early childhood. Parents should always conduct themselves in a manner that best suits their children, even if their own feelings or legal rights are hindered. If a “fit” parent isn’t willing to share their time and custody with another fit parent, then that parent arguably doesn’t have the child’s best interests in mind.

Do I Need a Lawyer for My Family Law Issue?

If you have difficulty seeing your child as the holidays approach, you should contact a family lawyer today. A skilled family lawyer can answer your questions, provide guidance on your case, and represent your best interests in court.