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:
