What does the Equitable Caregiver Act mean for you?

Custody or visitation rights are one of the most important (or the most important) issues to address when parents file for divorce. Unless one parent is deemed unsuitable or unsafe, the Georgia Family Court will grant custody to both parents even if the child spends most of their time with the custodial parent. This thinking hinges on the fact that the parents were biological or adoptive, and it is in the child’s best interests to have both parents involved in their life.

Enacted in 2019, the Equitable Caregiver Act (ECA) revises this thinking to include a broader range of responsible adults who play an essential role in the child’s life. It does this by empowering judges more flexibility in determining the child’s best interests when custody disputes arise. It also provides a new avenue for third parties to obtain custody and visitation rights without disestablishing parents’ rights. For example, the ECA notably can grant custodial status, joint custody or visitation rights to non-biological parents like same-sex coparents and step-parents.

Where to start

An individual seeking to be an equitable caregiver first must establish standing with the child:

1. File an affidavit alleging specific facts that support the existence of an equitable caregiver relationship.
2. The adverse party, parent, or legal guardian who files a pleading in response shall also file an affidavit in response.
3. The court determines whether the individual has presented convincing evidence of the requirements.
4. If the court agrees with the applicant, the case proceeds to adjudication.

What the judge looks for

The court weighs whether there is clear and convincing evidence that the individual has:

• A permanent, committed and responsible parental role.
• Engaged in consistent caretaking.
• Established a bonded and dependent relationship, which was encouraged or supported by the biological parent, who understood, acknowledged or accepted that role even though they are the legal parent.

The ECA’s impact

Advocates hail the ECA’s positive impact, including providing legal clarity through a series precedents, offering the equal parental standing in with same-sex parents and, most importantly, more support to the child. The courts rightly take family law issues very seriously, so it best to work with a family law attorney with experience handling legal matters tied to the ECA. They can help prepare the application and advocate for their client before the judge.