Georgia Supreme Court Should Leave Child Custody Law for Caregivers Alone – Law Blog

Ought to Dad and mom Have Custody Primarily based on authorized fictions or time spent with a baby? The Georgia Legislature acknowledged that point and care create a child-parent relationship when it handed the Equitable Caregiver Act in 2019. The Georgia Supreme Courtroom has threatened to revoke that regulation regardless of how damaging it might be to a baby’s greatest pursuits.

The kid “MD” was born in October 2010. Michelle Dias’s cousin gave delivery to M.D. Dias and her then romantic accomplice, Abby Boone, started caring for M.D. when M.D. was six weeks outdated. Dias adopted MD in March 2011. Boone was not a celebration to the adoption, however “Boone” was MD’s center identify on the post-adoption delivery certificates. A number of years later, the couple broke off their romantic relationship. Boone continued to be concerned in MD’s life after the breakup till 2018, when Dias stopped additional contact between Boone and MD.

Boone filed a lawsuit looking for joint bodily and authorized custody of and parenting time with M.D. Abby Boone requested the decrease courtroom to offer her equitable caregiver standing to Michelle Dias’s minor little one. The trial courtroom determined that Boone had introduced clear proof that the kid would endure emotional hurt if the connection have been discontinued. The courtroom required each girls to comply with a parenting plan. Dias appealed the constitutionality of the Equitable Caregiver Act.

The Equitable Caregiver Act permits a decide to offer joint custody over a former lover’s little one. That particular person should persuade the courtroom that she or he had a “parental” function and a “bonded and dependent” relationship with the kid that was “fostered or supported” by a father or mother of a baby.

The Georgia Supreme Courtroom, in a unanimous choice, dominated in favor of Dias and reversed the trial courtroom’s choice. The justices decided that the Equitable Caregiver Act didn’t apply to their case as a result of Boone’s relationship with the kid predated the passage of the Act. The excessive courtroom didn’t overturn the regulation, however expressed concern that the statute “violates the basic proper of fogeys to the care, custody, and management of their kids.”

Parental Rights Should Be Secondary to the Little one’s Greatest Pursuits

Dias’s challenges to the Equitable Caregiver Act are based mostly on the premise that the best of match mother and father to the care, custody, and management of their kids is secured by each the USA Structure and the Georgia Structure. The Georgia Supreme Courtroom has beforehand held that custody might not be awarded to a 3rd social gathering “within the absence of a voluntary relinquishment of parental rights, parental abandonment or unfitness, or different distinctive trigger, established by clear and powerful proof.” Courts historically presume “{that a} match father or mother will act in the very best curiosity of his or her little one.”

This idea of parental “basic rights” is deeply flawed. First, the USA Structure doesn’t speak about parental rights anyplace in its 4 corners. The Georgia Supreme Courtroom is studying the fifth Modification due course of clause to help parental rights. Nevertheless, on condition that the USA Supreme Courtroom has lately reversed abortion rights, which have been additionally underpin on due course of, any reliance on basic rights in the USA Structure when the specific textual content doesn’t reference such rights is a dangerous proposition at greatest.

Second, one grownup having parental rights doesn’t robotically violate the parental rights of one other grownup. Most kids have at the least two mother and father. The truth that one father or mother has a parental function doesn’t void the parental function of one other. This false premise solely highlights why the very best pursuits of the kid should be paramount and independently checked by the courtroom moderately than presumed just because a father or mother could also be “match.”

Dad and mom solely have a “basic proper” to their kids to the extent it in the little one’s greatest pursuits. Nevertheless, kids are unbiased individuals from their mother and father, even when they’re initially utterly depending on their mother and father throughout early childhood. Dad and mom ought to all the time conduct themselves in a way that most accurately fits their kids, even when their very own emotions or authorized rights are hindered. If a “match” father or mother isn’t keen to share their time and custody with one other match father or mother, then that father or mother arguably doesn’t have the kid’s greatest pursuits in thoughts.

Do I Want a Lawyer for My Household Regulation Concern?

If you happen to have problem seeing your little one as the vacations method, you need to contact a household lawyer right this moment. A talented household lawyer can reply your questions, present steerage in your case, and characterize your greatest pursuits in courtroom.