NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: February 18, 2025
S24A0887. DIAS v. BOONE.
PETERSON, Presiding Justice.
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[.]” OCGA § 19-7-3.1 (d). 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
2
the legal parent that took place prior to the effective date of the
statute. And so we reverse.
1. Background
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.
Boone filed an action in superior court seeking equitable
caregiver status under OCGA § 19-7-3.1 in August 2019, one month
after the new statute became effective. The statute provides that a
court may “adjudicate an individual to be an equitable caregiver.”
OCGA § 19-7-3.1 (a). It provides both procedural and substantive
requirements for an individual to establish “standing to maintain
3
the action” to be adjudicated as an equitable caregiver. See OCGA
§ 19-7-3.1 (b), (d). 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.
OCGA § 19-7-3.1 (d). The statute also sets forth factors that the
court “shall consider” “[i]n determining the existence of harm[.]”
OCGA § 19-7-3.1 (e). But, as discussed further below, the statute
does not specify what circumstances must be the source of that harm
4
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.” OCGA § 19-7-3.1 (g).
In her lawsuit, Boone sought joint physical and legal custody
of and parenting time with M.D. In September 2019, Dias filed a
motion to dismiss. The trial court held a hearing at which Dias’s
counsel stated that there was sufficient evidence for Boone to make
a prima facie showing as to all of the requirements for equitable
caregiver standing except for the fifth, which addresses the issue of
harm to the child, saying there was “no real question of fact” except
for the harm issue. The trial court issued an order granting Boone’s
“request for determination of prima facie case for standing” and
reserving ruling on Dias’s motion to dismiss.
Dias later filed another motion styled as a “Motion for
Declaratory Judgment/Motion to Dismiss and Brief in Support.”
Dias argued that OCGA § 19-7-3.1 was unconstitutional, because it
5
does not sufficiently protect a parent’s fundamental right under the
federal and state constitutions to the care, custody, and control of
her child. 1 Although Dias’s motion was not explicit as to whether her
constitutional challenge to the statute was facial or as-applied, the
parties at the hearing appeared to treat it as both, and the trial
court’s order characterized the challenge as both facial and asapplied. The trial court denied the motions to dismiss and for
declaratory judgment. 2 The case proceeded to a four-day trial in
March 2023. The pre-trial order entered in the case included a
number of stipulations by the parties, including that Dias “fostered
and supported the relationship” between M.D. and Boone until
January 2018 but Boone “has not seen or spoken to (other than from
a distance or in passing) this child” since February 2018.
1 Dias invited the trial court to delay a trial or ruling on the motion until
this Court issued a ruling in McAlister v. Clifton, a similar case pending before
this Court at the time. But this Court soon issued an opinion in McAlister
concluding that a parent’s challenge to the constitutionality of OCGA § 19-7-3.1 was moot in that case because the child at issue had turned 18 prior to the
docketing of the appeal. See McAlister v. Clifton, 313 Ga. 737, 738-742 (1) (873
SE2d 178) (2022).
2 This Court declined to grant an interlocutory application seeking
review of that order.
6
On August 10, 2023, the trial court issued a lengthy order
granting Boone’s request for standing as an equitable caregiver.
After recounting the various evidence and stipulations about
Boone’s history of caregiving for and relationship with M.D., the
trial court found that Boone had “presented clear and convincing
evidence that [M.D.] will suffer long-term emotional harm, and that
continuing the relationship between [M.D.] and [Boone] is in
[M.D.]’s best interest.” In particular, the trial court found that
around February 2018 Dias had “intentionally, unilaterally, and
without regard for [M.D.]’s well-being, severed a bonded
relationship between [M.D.] and [Boone].” The trial court found that
“any severance of an established, bonded, and dependent
relationship between [M.D.] and [Boone], who acted in the role of
parent from the time [M.D.] was just 6 weeks old, inherently causes
long-term emotional harm and was not in [M.D.]’s best interest in
January 2018, today, or in the future.” In the August 2023 order, the
trial court declared that Boone’s “request for standing as an
equitable caregiver is hereby GRANTED with all the rights and
7
responsibilities as contemplated by Georgia law.” The trial court
provided for some written communication between Boone and M.D.
and ordered that therapy for the child with a new therapist chosen
by the guardian ad litem to “assist with the future process of
reunification and any other issues related to this matter” should
begin immediately. But, referencing the parties’ expressed desire to
appeal any adverse ruling, the trial court explained that its intent
was “that the stability of [M.D.] is not to be further disrupted by
beginning a reunification process and visitation schedule with
petitioner if this Court’s decision is ultimately reversed on appeal.”
The trial court concluded by stating that it “RESERVES ruling on
all other pertinent issues until such time as the period to appeal this
Order has passed, or the Court of Appeals or other higher Court
renders its decision in this matter, whichever occurs first.” Dias’s
notice of appeal of this order was dismissed by this Court in
December 2023 on the ground that the order was a non-final order
and Dias had failed to follow the interlocutory application
procedures.
8
On remand in January 2024, the trial court issued a new order.
The court’s new order reiterated that Boone “is granted equitable
caregiver status” and stated that “it is in [M.D.]’s best interest to
have petitioner as a caregiver in her life, and that any further delay
in reunification than what has already occurred during the many
years this case has remained pending could only cause M.D.
additional harm.” The trial court ordered the parties to follow an
incorporated parenting plan that provided for joint legal custody,
with Dias as the primary physical custodian. The parenting plan
provided a graduated parenting time schedule that gave increasing
amounts of visitation to Boone over time. The trial court also ordered
that each party was solely responsible for her own attorney’s fees.
Dias has appealed the trial court’s January 2024 order. We
held oral argument in the case on October 22, 2024, and ordered
supplemental briefing from the parties on multiple issues. 3
2. This Court has jurisdiction over this case notwithstanding
3 Amicus briefs were filed by Nathan Hartman, the National Association
of Parents, Inc., d/b/a ParentsUSA, and Glenn Memorial United Methodist
Church.
9
that Dias did not file an application for discretionary appeal.
We first address a jurisdictional issue raised not by the parties4
but by a recent decision of the Court of Appeals in another case
brought under the Equitable Caregiver Statute. “It is incumbent
upon this Court, even when not raised by the parties, to inquire into
its own jurisdiction.” Metro Atlanta Task Force for the Homeless, Inc.
v. Ichthus Community Trust, 298 Ga. 221, 223 (1) (a) (780 SE2d 311)
(2015) (citation and punctuation omitted). The Court of Appeals
recently in a published opinion dismissed for failure to file a
discretionary application an appeal of an order granting equitable
caregiver status and joint legal and physical custody of two children
to their father’s former romantic partner. See Hartman v. De Caro,
371 Ga. App. 578 (901 SE2d 204) (2024) (cert. pending, Case No.
4 Although Boone did not contest this Court’s appellate jurisdiction over
this appeal in her primary brief or in any motion to dismiss filed with this
Court, she did argue in supplemental briefing ordered by the Court that the
appeal is subject to dismissal due to Dias’s failure to file an application for
discretionary appeal. We note that this case was properly appealed to this
Court instead of the Court of Appeals because Dias raises a novel
constitutional challenge to a statute. See Ga. Const. of 1983, Art. VI, Sec. VI,
Par. II (1).
10
S24C1257). The Court of Appeals’s theory of dismissal was that an
appeal from an order granting equitable caregiver status was an
appeal from an order in a “domestic relations case” that must be
pursued through the discretionary application process under OCGA
§ 5-6-35 (a) (2). See id. at 578-579.
That decision appears to be contrary to recent practice by both
this Court and the Court of Appeals, albeit in cases in which the
appellate court did not address in its opinion why no discretionary
application was required. See McAlister v. Clifton, 313 Ga. 737 (873
SE2d 178) (2022); McDonald v. Reyes, 365 Ga. App. 317 (878 SE2d
79) (2022); Skinner v. Miles, 361 Ga. App. 764 (863 SE2d 578) (2021);
Teasley v. Clark, 361 Ga. App. 721 (865 SE2d 556) (2021). But more
importantly, we conclude that the Court of Appeals’s decision to
dismiss the appeal in Hartman was incorrect.
Even where a judgment or order is subject to an immediate
appeal under OCGA § 5-6-34 (a), if the underlying subject matter is
listed in OCGA § 5-6-35 (a), a party must follow the discretionary
application process in order to appeal immediately. See Grogan v.
11
City of Dawsonville, 305 Ga. 79, 82 (2) (823 SE2d 763) (2019); Rebich
v. Miles, 264 Ga. 467, 468 (448 SE2d 192) (1994). OCGA § 5-6-34 (a)
(11) provides that appeals may be taken from “[a]ll judgments or
orders in child custody cases awarding, refusing to change, or
modifying child custody or holding or declining to hold persons in
contempt of such child custody judgment or orders[.]” The January
2024 order in this case awards joint legal custody to Boone, so Dias
did not need to follow the interlocutory appeal procedures of OCGA
§ 5-6-34. See Grogan, 305 Ga. at 82-83 (2).5 But OCGA § 5-6-35 (a)
(2) provides that “[a]ppeals from judgments or orders in divorce,
alimony, and other domestic relations cases including, but not
limited to, granting or refusing a divorce or temporary or permanent
alimony or holding or declining to hold persons in contempt of such
alimony judgment or orders” must come by discretionary
application. In Hartman, the Court of Appeals started with the
premise that any case filed under the Equitable Caregiver Statute
5 We express no opinion as to whether the January 2024 order — which
purported to resolve all remaining issues in the case — may also be a final
judgment under OCGA § 5-6-34 (a) (1).
12
is a “domestic relations case” and thus any order entered in such a
case presumptively falls under OCGA § 5-6-35 (a) (2):
Generally, appeals from orders in “domestic relations
cases” must be pursued through an application for
discretionary appeal. OCGA § 5-6-35 (a) (2). The equitable
caregiver statute, OCGA § 19-7-3.1, falls under the
“domestic relations” statutory scheme. See OCGA § 19-7-3.1; see also Teasley v. Clark, 361 Ga. App. 721, 724 (4)
(865 SE2d 556) (2021) (the equitable caregiver statute is
a domestic relations statute). Thereby, an appeal of an
order in an equitable caregiver matter must be filed
through an application for discretionary appeal.
Hartman, 371 Ga. App. at 578. But orders in cases brought under
the Equitable Caregiver Statute are not “domestic relations cases”
under OCGA § 5-6-35 (a) (2).
Although OCGA § 5-6-35 (a) (2) refers to “other domestic
relations cases,” “[i]t is important to remember that when we
determine the meaning of a particular word or phrase in a
constitutional provision or statute, we consider text in context, not
in isolation.” Kinslow v. State, 311 Ga. 768, 773 (860 SE2d 444)
(2021) (citation and punctuation omitted). In particular, under the
canon of noscitur a sociis, the phrase “other domestic relations
13
cases” must be understood in relation to the other words in OCGA §
5-6-35. See id. (explaining that under the canon of noscitur a sociis,
a word must be understood in relationship to other words in a
statute, and we normally should “avoid ascribing to one word a
meaning so broad that it is inconsistent with its accompanying
words, thus giving unintended breadth to an act of the General
Assembly” (citation and punctuation omitted)). And the canon of
ejusdem generis counsels us to read “other domestic relations cases”
narrowly:
When a statute or document enumerates by name several
particular things, and concludes with a general term of
enlargement, this latter term is to be construed as being
ejusdem generis[,] i.e., of the same kind or class[,] with
the things specifically named, unless, of course, there is
something to show that a wider sense was intended.
Id. at 775 (citation and punctuation omitted). “[C]ourts typically use
ejusdem generis to ensure that a general word will not render
specific words meaningless.” Id. (citation and punctuation omitted);
see also Matthew P. Cavedon, “Georgia’s Law of Rules: Textualism
and a Survey of the Canons,” 76 Mercer L. Rev. 1, 38-39 (2024).
14
Applying these key canons of construction to OCGA § 5-6-35 (a)
(2), we conclude that the phrase “other domestic relations cases” as
used in that provision does not refer to family-law cases generally,
even if the phrase might be used in that more general sense in other
contexts. Compare Teasley, 361 Ga. App. at 724 (4) (referring to the
Equitable Caregiver Statute as a “domestic relations statute” in
determining that it imposes no duty on the trial court to issue
specific findings of fact in support of its rulings). Rather, as used in
OCGA § 5-6-35 (a) (2), the phrase “other domestic relations cases”
refers specifically to cases like divorce and alimony cases, and the
orders covered by OCGA § 5-6-35 (a) (2) are orders like orders
“granting or refusing a divorce or temporary or permanent alimony
or holding or declining to hold persons in contempt of such alimony
judgment or orders[.]” Other than being generally in the realm of
family law, an order issued under the Equitable Caregiver Statute
— whether merely granting “standing” to a putative equitable
caregiver, or granting particular custody or visitation rights — is
nothing like an order “granting or refusing a divorce or temporary
15
or permanent alimony” or a related contempt order. OCGA § 5-6-35
(a) (2). The Equitable Caregiver Statute requires no particular kind
of relationship between the adults involved but speaks only to the
adults’ relationship with a particular child. Indeed, the parties in
this case were never married at all, and the order at issue here is
not so much about their relationship with one another as their
relationships with M.D.
Even to the extent that OCGA § 5-6-35 (a) (2)’s reference to
“other domestic relations cases” is a phrase that might in the
abstract be broad enough to include cases brought under the
Equitable Caregiver Statute, the statutory history makes clear that
an order like the one here is not included within that provision. The
remedy available through the Equitable Caregiver Status is, per the
language of the statute, “to establish parental rights and
responsibilities for” the equitable caregiver “including, but not
limited to, custody or visitation.” OCGA § 19-7-3.1 (g).6 And the
6 As we have explained, a “change in visitation amounts to a change in
custody in legal contemplation since visitation rights (sometimes called
16
General Assembly in 2007 specifically removed “[a]ppeals from
judgments or orders in . . . child custody . . . cases including, but not
limited to, . . . awarding or refusing to change child custody” from
the language of OCGA § 5-6-35 (a) (2). See Ga. L. 2007, pp. 554-556,
§§ 2-3; Todd v. Todd, 287 Ga. 250, 250 (1) (703 SE2d 597) (2010); In
re K.R., 285 Ga. 155, 155-156 (674 SE2d 288) (2009).7 We presume
that such a legislative change to the language of the statute changed
the meaning of the statute. See Allen v. State, 319 Ga. 415, 419 (2)
n.6 (902 SE2d 615) (2024) (“When the General Assembly changes
the language of a statute, that typically signals an intent to change
the meaning of the statute.”). And the obvious change in meaning
here was to remove appeals from “child custody cases” and orders
“awarding or refusing to change child custody” from the category of
orders and judgments that OCGA § 5-6-35 (a) (2) requires a
visitation privileges) are a part of custody.” Facey v. Facey, 281 Ga. 367, 369
(2) (638 SE2d 273) (2006) (citation and punctuation omitted).
7 At the same time, the General Assembly added the OCGA § 5-6-35 (a)
(12) provision requiring discretionary applications for “[a]ppeals from orders
terminating parental rights[,]” and added the OCGA § 5-6-34 (a) (11) provision
authorizing direct appeal of “judgments or orders in child custody cases[.]” See
Ga. L. 2007, pp. 554-556, §§ 2-3.
17
discretionary application to appeal. See Moore v. Moore-McKinney,
297 Ga. App. 703, 707 (1) (678 SE2d 152) (2009) (“The logical
conclusion to be drawn from these [2007] changes to pre-existing law
is that the legislature intended for child custody cases to be treated
differently from other domestic relations cases for purposes of
appeals. Accordingly, we find that it was the intent of the General
Assembly to remove child custody cases from the operation of OCGA
§ 5-6-35 (a) (2) when it excised references to such cases from the
statute. To rule otherwise would be to ignore the apparent intent of
the legislature while affording no practical effect to its 2007
amendment of OCGA § 5-6-35 (a) (2).”).
In Hartman, as noted above, the Court of Appeals assumed
that orders issued under the Equitable Caregiver Statute were
orders in “domestic relations cases” under OCGA § 5-6-35 (a) (2). See
371 Ga. App. at 578. The Hartman court also cited OCGA § 5-6-34
(a) (11), which provides that no interlocutory application is required
to appeal “judgments or orders in child custody cases.” See id. Based
on the assumption that OCGA § 5-6-35 (a) (2) generally required
18
that an appeal of an order in a case filed under the Equitable
Caregiver Statute must be brought by an application for
discretionary appeal, the Court of Appeals in Hartman relied on case
law to the effect that whether a discretionary application is required
to appeal an order in the divorce context in which custody is at issue
turns on whether the custody determination in the order at issue is
merely “ancillary” to the primary issue in the case, i.e., whether a
marriage should be dissolved. See id. at 579 (citing Hoover v. Hoover,
295 Ga. 132, 134 (1) (757 SE2d 838) (2014); Todd, 287 Ga. at 251
(1)); see also Voyles v. Voyles, 301 Ga. 44, 45-46 (799 SE2d 160)
(2017) (noting that “even if the appeal arises from the type of order
specified in OCGA § 5-6-34 (a) (11) and that order was entered in a
‘child custody’ case, this Court has also looked to the issue raised on
appeal in determining whether a party was entitled to a direct
appeal”). Thus, the Court of Appeals in Hartman focused its analysis
on whether the order at issue in that case was primarily a child
custody determination, on the theory that if it were, no application
would be required, per OCGA § 5-6-34 (a) (11). See Hartman, 371
19
Ga. App. at 579. The court ultimately concluded that the custody
determination in the order at issue in that case was merely
“ancillary to the grant of De Caro’s equitable caregiver
determination,” such that a discretionary application was required.
Id. But, as noted above, our case law says that whether an order is
immediately appealable under OCGA § 5-6-34 (or whether an
interlocutory application is required instead) is a separate question
from whether a discretionary application is required by OCGA § 5-6-35. And regardless of the proper approach regarding a custody
order issued in a divorce proceeding, that has no bearing in the
context of orders issued under the Equitable Caregiver Statute
outside of a divorce proceeding, which, as explained above, are not
“orders in divorce, alimony, [or] other domestic relations cases” that
require a discretionary application under OCGA § 5-6-35 (a) (2).8
The Court of Appeals thus was wrong in Hartman to follow the
8 To the extent that a petition under the Equitable Caregiver Statute
might be brought in the context of a divorce proceeding, we express no opinion
about whether appeals from orders or judgments entered in such a case must
come by discretionary application.
20
divorce line of cases.
Citing Numanovic v. Jones, 321 Ga. App. 763 (743 SE2d 450)
(2013), Boone suggests that an order granting equitable caregiver
status also may be subject to discretionary appeal because a petition
for equitable caregiver status is “analogous to an action for
legitimation, the appeal of which is also discretionary.” In
Numanovic, the Court of Appeals held that a father was required to
file a discretionary application to seek an appeal from an order
denying his petition for legitimation (which he filed in the context of
an adoption action), citing both OCGA § 5-6-35 (a) (2) and OCGA §
5-6-35 (a) (12), the latter of which requires a discretionary
application for “[a]ppeals from orders terminating parental rights[.]”
See Numanovic, 321 Ga. App. at 764. But even if a discretionary
application generally is required for an appeal from an order
denying a legitimation petition (a point not before us and that we do
not decide),9 an order ruling on a petition for equitable caregiver
status is not such an order; petitions for legitimation are governed
9 Some of us are doubtful that Numanovic was rightly decided.
21
by a completely different Code section. And an order granting
equitable caregiver status, the sort of order at issue here, certainly
does not itself amount to an order “terminating parental rights.”
Because the order at issue does not fall within OCGA § 5-6-35
(a) (2), Dias was not required to file a discretionary application. We
therefore turn to her arguments on the merits.
3. We do not reach a definitive conclusion on the
constitutionality of the Equitable Caregiver Statute, because it does
not apply to Dias’s conduct that forms the basis for Boone’s petition.
Dias argues that the Equitable Caregiver Statute is
unconstitutional because it violates the due process right of parents
under both the federal and Georgia constitutions and because it
violates equal protection principles found in both constitutions.
Dias’s arguments raise serious questions about the constitutionality
of the Equitable Caregiver Statute, but we need not resolve those
questions here, because we conclude as a matter of statutory
construction that the statute does not apply to this case.
(a) Dias raises serious questions about whether the Equitable
22
Caregiver Statute violates the fundamental constitutional right of
parents to the care, custody, and control of their children.
At their core, Dias’s challenges to the Equitable Caregiver
Statute 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. See Troxel
v. Granville, 530 U.S. 57, 65 (120 SCt 2054, 147 LE2d 49) (2000)
(plurality opinion); Patten v. Ardis, 304 Ga. 140, 143-144 (2) (816
SE2d 633) (2018). The United States Supreme Court has recognized
this right as embedded in the Due Process Clause of the Fourteenth
Amendment. See Troxel, 530 U.S. at 66.
This right, which found recognition in the common law of
England long before Georgia adopted the common law as our own,
was recognized by this Court as early as 1858. See Patten, 304 Ga.
at 141 (2) (citing Rives v. Sneed, 25 Ga. 612, 622 (1858)). Early
Georgia cases “acknowledged the ‘paramount right’ of parents to the
care, custody, and control of their children, but recognized that the
right could be overcome by a showing of harm or threat of harm to
23
the child.” Patten, 304 Ga. at 142 (2) (citing Sloan v. Jones, 130 Ga.
836, 851 (62 SE 21) (1908); Moore v. Dozier, 128 Ga. 90, 93 (57 SE
110) (1907)); see also Hill v. Rivers, 200 Ga. 354, 358-365 (37 SE2d
386) (1946) (surveying early cases).
Although these early decisions did not clearly construe or even
apply any particular provision of the Georgia (or federal)
constitution, we have since recognized that these principles are of
constitutional dimension under the Georgia Constitution and may
be embodied in Article I, Section I, Paragraph I, which guarantees
due process, or Article I, Section I, Paragraph XXIX, which
recognizes unenumerated, “inherent rights” retained by the people.
See Patten, 304 Ga. at 143 (2) n.9. (“In past cases, we have been less
than precise about the particular provisions of our state
Constitution that guarantee the right of parents to the care, custody,
and control of their children.”). The due process provision has been
in our state constitution in materially the same form since 1861,
while the inherent rights provision has been in the Georgia
Constitution in materially the same form since 1877. See Ga. Const.
24
of 1861, Art. I, Sec. IV (“No citizen shall be deprived of life, liberty
or property, except by due process of law, and of life or liberty, only
by the judgment of his peers.”); Ga. Const. of 1877, Art. I, Sec. V,
Par. II (“The enumeration of rights herein contained as a part of this
Constitution, shall not be construed to deny to the people any
inherent rights which they may have hitherto enjoyed.”).10 Thus,
they have remained the same throughout most of the development
of this body of law. Therefore, although our case law prior to the
ratification of the current Georgia constitution may fall short of the
sort of consistent and definitive construction that presumptively
was carried forward into that current constitution, see Elliott v.
State, 305 Ga. 179, 184 (II) (B) (824 SE2d 265) (2019), this case law
still is relevant to our understanding of those constitutional
10 There was a sort of inherent rights provision in the 1861 and 1865
constitutions, as well as 1795 amendments to the 1789 constitution. See Ga.
Const. of 1865, Art. I, Sec. XXI; Ga. Const. of 1861, Art I, Sec. XXVII; Ga. Const. of 1789, Art. VIII. But there was no provision of this sort in the 1798 or 1868
constitutions. See also generally Brennan Mancil, “Reviving Elusive Rights:
State Constitutional Unenumerated Rights Clauses as Bounded Guarantors of
Fundamental Liberties,” 19 Georgetown J. of L. & Pub. Pol’y 281, 309-316
(Winter 2021) (discussing Georgia’s inherent rights provision generally and as
a guarantor of parental rights specifically).
25
provisions as they were carried forward into later constitutions.
Based on recognition of this fundamental right held by parents,
we have said 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.” Patten, 304 Ga. at 142 (2)
(citing Miller v. Wallace, 76 Ga. 479, 486-487 (2) (1886)); see also
Harris v. Snelgrove, 290 Ga. 181, 182 (2) (718 SE2d 300) (2011) (“[A]
parent has a right of custody to her child in preference to a third
party unless there is clear and convincing evidence that the parent
is unfit.”); In re Suggs, 249 Ga. 365, 367 (2) (291 SE2d 233) (1982)
(the right to custody and control of one’s child “is a right that should
be infringed upon only under the most compelling circumstances”).
A plurality of this Court upheld the state’s third-party custody
statute, OCGA § 19-7-1 (b.1), which explicitly contains a rebuttable
presumption that it is in a child’s best interest for custody to be
awarded to the child’s parent or parents, only after construing the
statute as requiring a non-parent relative seeking custody to show
26
by clear and convincing evidence that parental custody would harm
the child. See Clark v. Wade, 273 Ga. 587, 598 (IV) (544 SE2d 99)
(2001). The full Court later stated that “a parent has a right of
custody to her child in preference to a third party unless there is clear
and convincing evidence that the parent is unfit.” Harris, 290 Ga. at
182-183 (2) (emphasis supplied).
And we have said that even an order of visitation with a nonparent may not be imposed “over the objection of fit parents simply
on the best interests of the child, without a clear and convincing
showing of actual or imminent harm to the child[.]” Patten, 304 Ga.
at 144-145 (3) (citing Brooks v. Parkerson, 265 Ga. 189, 194 (2) (c)
(454 SE2d 769) (1995)). We have applied these constitutional
principles to hold unconstitutional provisions in prior versions of the
state’s relative-visitation statute, OCGA § 19-7-3, because those
provisions permitted a court to set aside the decisions of a fit parent
about what is best for his or her child, without requiring clear and
convincing proof that particular decisions not to permit grandparent
visitation harmed or threatened to harm the child. See Patten, 304
27
Ga. at 144-145 (3); Brooks, 265 Ga. at 194 (2) (c); accord Troxel, 530
U.S. at 67-73 (state visitation statute unconstitutional as applied in
grandparent visitation order over objections of undisputedly fit
parent where parent did not oppose all visitation and court gave no
weight to parent’s decisions). We later upheld a provision in the
current version of the relative-visitation statute, which now includes
visitation by siblings and great-grandparents, only after the statute
was amended to require a showing of “clear and convincing
evidence” that the health and welfare of the child would be harmed
without visitation. See Barnhill v. Alford, 315 Ga. 304, 313 (2) (b)
(882 SE2d 245) (2022); Ga. L. 2016, p. 87-88, § 1.
The Equitable Caregiver Statute contains statements of
respect for a parent’s fundamental right to the care, custody, and
control of her child. The statute requires a putative equitable
caregiver to show by clear and convincing evidence “that the child
will suffer physical harm or long-term emotional harm[.]” OCGA §
19-7-3.1 (d) (5). The statute also states that “[t]he adjudication of a
person under this Code section as an equitable caregiver does not
28
disestablish the parentage of any other parent.” OCGA § 19-7-3.1
(j).11
But Dias raises serious constitutional questions about the
statute. In order to give effect to parents’ fundamental constitutional
right, courts traditionally presume “that a fit parent will act in the
best interest of his or her child.” Troxel, 530 U.S. at 69. But unlike
Georgia’s relative-visitation statute, the Equitable Caregiver
Statute does not explicitly require trial courts to give deference to a
parent’s judgment as to the best interests of the child regarding
visitation with a third party. Compare OCGA § 19-7-3 (c) (3), (d) (1)
with OCGA § 19-7-3.1. And unlike the third-party custody statute,
the Equitable Caregiver Statute contains no presumption that it is
in the best interests of a child to be in the custody of her legal parent.
Compare OCGA § 19-7-1 (b.1) with OCGA § 19-7-3.1.
11 It is unclear what meaning — if any — this language actually has in
the light of the rest of the statute. It is plainly true that adjudicating someone as an equitable caregiver does not terminate any parental rights. But it is also
plainly true that affording a third party new rights to custody, visitation, or
other matters that fit parents otherwise control effectively diminishes the fit
parent’s rights.
29
Even more troubling, the Equitable Caregiver Statute on its
face does not require that relief awarded to an equitable caregiver
be narrowly tailored to the harm or threatened harm that has been
shown. Again, one of the prerequisites for establishing “standing” as
an equitable caregiver under the statute is demonstrating “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.” OCGA § 19-7-3.1 (d) (5). But
as noted above, that language does not specify what circumstances
must be the source of that harm — under what scenario the child
“will suffer . . . harm” — for that criterion to be satisfied. Perhaps a
reasonable construction of that provision is that to be afforded
equitable caregiver “standing,” a petitioner must show that the
absence of “continuing the relationship between such individual and
the child” would cause the child physical or long-term emotional
harm. But once the putative equitable caregiver satisfies the criteria
for establishing “standing,” it is not clear from the language of the
statute what more, if anything, must be shown before the trial court
30
“enter[s] an order as appropriate to establish parental rights and
responsibilities for such individual, including, but not limited to,
custody or visitation.” OCGA § 19-7-3.1 (g).
At the very least, our case law requires a showing by clear and
convincing evidence that the child will suffer harm from a fit
parent’s particular decision regarding the child’s contact with a
third party, and that the trial court’s remedy be tailored to the harm
caused by that decision. See Patten, 304 Ga. at 140 (holding that
prior version of relative-visitation statute violated the Georgia
constitutional right of parents to the care, custody, and control of
their children because “it permit[ted] a court to set aside the
decisions of a fit parent about what is best for his or her child,
without clear or convincing proof that those decisions have harmed
or threaten to harm the child” (emphasis supplied)). Moreover, it is
difficult to conceive of a scenario in which a child will suffer harm
due to a fit parent’s decision to decline to share legal custody (as
opposed to merely allowing some visitation or other contact) with a
third party. And yet the Equitable Caregiver Statute purports to
31
allow a grant of “custody” to someone other than the child’s legal
parent, OCGA § 19-7-3.1 (g), without explicitly requiring a finding
that the legal parent is unfit to exercise custodial rights. Absent a
requirement that the relief awarded be tailored to the specific harm
demonstrated by clear and convincing evidence, serious questions
about the statute’s constitutionality exist.
(b) Boone makes a strong argument that parents may waive
their constitutional right at least in some limited fashion through the
sort of behavior contemplated by the Equitable Caregiver Statute.
Boone’s defense of the constitutionality of the Equitable
Caregiver Statute has emphasized the statute’s requirement that
the legal parent have “fostered or supported” the relationship
between the child and the putative equitable caregiver. OCGA § 19-7-3.1 (d) (3). To the extent that Boone argues that a parent who
fosters or supports a parent-like relationship between her child and
another may in some circumstances give up her constitutional right
as a parent at least in some limited respect, that argument has some
force, as even fundamental constitutional rights can be waived. See,
32
e.g., Daniel v. Daniel, 250 Ga. 849, 851 (2) (301 SE2d 643) (1983)
(“Constitutional rights may be waived, as may rights created by
statute.”); North Carolina v. Butler, 441 U.S. 369, 374-375 (99 SCt
1755, 60 LE2d 286) (1979) (“Even when a right so fundamental as
that to counsel at trial is involved, the question of waiver must be
determined on the particular facts and circumstances surrounding
that case, including the background, experience, and conduct of the
accused.” (citation and punctuation omitted)); Pierce v. Somerset Ry.,
171 U.S. 641, 648 (19 SCt 64, 43 LE 316) (1898) (“A person may, by
his acts or omission to act, waive a right which he might otherwise
have under the constitution of the United States as well as under a
statute[.]”). Indeed, we have a long tradition of recognizing
voluntary relinquishment of parental rights by contract under the
statutory provision currently found at OCGA § 19-7-1 (b) (1)
(“Parental power shall be lost by: [v]oluntary contract releasing the
right to a third person[.]”). See In re M.A.F., 254 Ga. 748, 751 (1)
(334 SE2d 668) (1985); Durden v. Johnson, 194 Ga. 689, 689 (2) (22
SE2d 514) (1942); Wilkinson v. Lee, 138 Ga. 360, 362 (1) (75 SE 477)
33
(1912); Janes v. Cleghorn, 54 Ga. 9, 14 (2) (1875).
Here, Dias has stipulated that she “fostered and supported”
Boone’s “bonded and dependent relationship with” M.D. and “held
[Boone] out as a parent of” M.D. on various school and medical
records. But even if that sort of conduct could amount to a waiver of
a parent’s fundamental constitutional right, we have serious
concerns with concluding that Dias has waived that right here. In
most contexts, a waiver of constitutional rights must be knowing,
voluntary, and intelligent in order to be effective. See, e.g.,
Rosenbaum v. State, 320 Ga. 5, 16 (2) (b) (907 SE2d 593) (2024)
(waiver of right to conflict-free counsel valid under the Sixth
Amendment if the waiver is knowing, voluntary, and intelligent);
Green v. State, 318 Ga. 610, 615-616 (II) (A) (1) & n.3 (898 SE2d 500)
(2024) (guilty pleas satisfy constitutional due process if they are both
voluntary and intelligent, the latter being synonymous with
“knowing”); see also Matter of Adoption of T.M.M.H., 416 P3d 999,
1009 (Kan. 2018) (“[T]o give effect to a natural mother’s waiver of
parental preference in favor of a third party, the waiver must be
34
made knowingly, intelligently and voluntarily[.]” (citation omitted)).
And in order to be knowing and intelligent, a waiver must be done
with sufficient awareness of the likely consequences. See Green, 318
Ga. at 614 (II) (“In light of the guilty plea’s nature and its
consequences, as a matter of federal constitutional law the plea
must be both voluntary (made of the defendant’s own free choice)
and intelligent (made with awareness of the relevant circumstances
and likely consequences).”); Smith v. State, 287 Ga. 391, 394 (2) (a)
(697 SE2d 177) (2010) (“As a matter of constitutional due process,
before a defendant pleads guilty, the trial court must advise him of
the ‘direct’ consequences of entering the plea, but not of all the
potential ‘collateral’ consequences, in order for the guilty plea to be
considered knowing and voluntary.” (citations omitted)), overruled
on other grounds by Collier v. State, 307 Ga. 363, 368-369 (1), 376-377 (834 SE2d 769) (2019).
Here, at the time that Dias engaged in the conduct at issue, she
could not have known that the possible consequences of that conduct
included any effect on her parental rights. Dias stipulated that she
35
“fostered and supported” the relationship between Boone and M.D.
only “until January 2018.” Boone testified about Dias withholding
M.D. from her beginning in January 2018. And the trial court found
that Dias “severed” the relationship between Boone and M.D.
around February 2018. But the Equitable Caregiver Statute was not
enacted until the 2019 Session of the General Assembly and did not
become effective until July 1, 2019. See Ga. L. 2019, pp. 632-636
(containing no provision for effective date); OCGA § 1-3-4 (a) (1)
(unless otherwise specified in the act, any act approved by the
governor on or after first day of January and prior to first day of July
of a calendar year shall become effective on the first day of July).
Prior to the act’s effective date, Georgia law did not provide
that merely “fostering or supporting” a particular relationship with
another could result in yielding any portion of parental rights to that
person. Thus, a Georgia parent who consulted counsel or Georgia
statutory or case law in the years that Dias was admittedly
“fostering or supporting” a relationship between Boone and M.D.
would have concluded that no such result would occur. She would
36
have discovered instead that Georgia law at the time provided for a
number of means by which a parent could lose her power — such as
by consent to adoption, abandonment, or “[v]oluntary contract
releasing the right to a third person” — but did not recognize a
concept of equitable caregiver by which a parent could yield at least
some parental power by “fostering or supporting” a particular
relationship. See OCGA § 19-7-1 (b) (2014). For that matter, at that
time a parent would have discovered longstanding case law to the
effect that in order for such a “voluntary contract” to effectuate a
loss of parental power, the contract must be “clear, definite, and
certain.” See Durden, 194 Ga. at 689 (2); Wilkinson, 138 Ga. at 363
(1); Miller v. Wallace, 76 Ga. 479, 487 (2) (1886); see also Looney v.
Martin, 123 Ga. 209, 213 (51 SE 304) (1905) (noting that “more than
the usual proof” is required to support a contention that a fit and
able father has voluntarily relinquished his right to custody and
control of his children). 12
12 Indeed, Boone testified at trial that although Dias “would always tell
me I promise I’ll never keep her from you,” “[t]he threat was always just
37
(c) We need not decide the difficult constitutional questions
posed by this case, because the Equitable Caregiver Statute is
reasonably susceptible to a construction that it does not apply to
conduct by parents prior to the statute’s effective date.
The constitutional issues posed by this case thus raise
important, novel, and difficult questions. We need not decide these
difficult constitutional questions here, however. As noted above, the
trial court found that Boone’s contact with M.D. was severed by Dias
in early 2018 — meaning that the conduct by Dias that is the basis
for Boone’s petition took place prior to that date — while the statute
became effective July 1, 2019. And the statute is reasonably
susceptible to a construction that it does not apply at all to conduct
by a parent that took place prior to the effective date.
“Generally speaking, this Court will not reach novel
constitutional questions when a case can be resolved without
passing on such issues.” State v. Randall, 318 Ga. 79, 81 (2) (897
remember I’m the legal parent and you’re not if she got mad. Of course it would
upset me.”
38
SE2d 444) (2024). Principles underlying the separation of powers
counsel us not to decide unnecessarily the constitutionality of
statutes. See id. This is “especially so in cases where the
constitutional merits are important, novel, and difficult.” See id. at
82 (2) (citation and punctuation omitted). Here, an issue of statutory
construction “presents a threshold issue of constitutional
avoidance,” because if the Equitable Caregiver Statute does not
apply to a parent’s conduct prior to its effective date, “this Court will
have no occasion to reach the merits of” Dias’s constitutional claim.
State v. Mondor, 306 Ga. 338, 344-345 (2) (830 SE2d 206) (2019).
Although Dias did not enumerate as error that the trial court erred
by applying a statute that does not apply to conduct taking place
prior to its effective date, a party cannot force us to reach a
constitutional issue simply by assuming a statute means something
it does not. 13
13 And we cannot completely avoid the constitutional issues implicated
here by addressing the (at least superficially) non-constitutional sufficiency-ofthe-evidence argument that Dias does raise. Fully addressing Dias’s argument
that the evidence of harm presented by Boone was insufficient would require
39
“The Due Process Clause of the Fourteenth Amendment to the
U.S. Constitution, which has language similar to the Due Process
Clause in Georgia’s Constitution, protects the interests in fair notice
and repose that may be compromised by retroactive legislation.”
Southern States Chemical, Inc. v. Tampa Tank & Welding, Inc., 316
Ga. 701, 707 (1) (888 SE2d 553) (2023) (footnotes, citation, and
punctuation omitted). Additionally, the Georgia Constitution
provides that “[n]o bill of attainder, ex post facto law, retroactive
law, or laws impairing the obligation of contract or making
irrevocable grant of special privileges or immunities shall be
passed.” See id. at 707 (1) n.8 (citing Ga. Const. of 1983, Art. I, Sec.
I, Par. X). “In determining whether legislation can be applied
retroactively, we engage in a two-part analysis.” Id. at 708 (1).
“Because of the presumption against retroactive legislation, this
Court will initially insist upon some clear indication in the statutory
us to determine what sort of evidence of harm is required to satisfy the statute,
which, as discussed above, necessarily implicates the difficult issues of parents’ constitutional right to the care, custody, and control of their children identified herein.
40
text that a statute is to be applied retroactively before so applying
it.” Id. (citation and punctuation omitted). Often any such clear
indication is found in an uncodified portion of the enacting
legislation. See, e.g., Deal v. Coleman, 294 Ga. 170, 175 (1) (b) (751
SE2d 337) (2013). “It is only when such a clear indication is present
that we then consider whether retroactive application is
unconstitutional,” which often amounts to an inquiry into whether
retroactive application would “injuriously affect the vested rights of
citizens.” Southern States Chemical, 316 Ga. at 708 (1) (citations and
punctuation omitted).
Here, there is absolutely no indication in the text of OCGA §
19-7-3.1 or its enacting legislation that the statute is to be applied
retroactively. Compare OCGA § 19-7-3.1 and Ga. L. 2019, pp. 632-636, with Ga. L. 2005, pp. 1, 18, § 15 (distinguishing between
provisions of Tort Reform Act, such as provisions on apportionment,
damages caps, and emergency medical care standard of liability,
that “shall apply only with respect to causes of actions arising on or
after the effective date of this Act” and those provisions, such as offer
41
of settlement and expert qualification provisions, that “shall apply
to causes of action pending on its effective date” (emphasis
supplied)). Boone does not argue otherwise.
Instead, Boone suggests that applying the statute to this case
does not amount to a retroactive application of the statute at all.
Boone correctly points out that a “statute does not operate
retrospectively because it relates to antecedent facts[.]” Adams v.
Adams, 219 Ga. 633, 634 (135 SE2d 428) (1964) (citation and
punctuation omitted). Rather, a statute applies retroactively if it
“creates a new obligation on transactions or considerations already
past, or destroys or impairs vested rights” and “if it is intended to
affect transactions which occurred or rights which accrued before it
became operative as such, and which ascribe to them essentially
different effects, in view of the law at the time of their occurrence[.]”
Id. (citations and punctuation omitted). But here, applying the
Equitable Caregiver Statute to effectively deprive a parent of some
or all of her rights to the care, custody, and control of her child, on
the theory that conduct by a parent prior to the statute’s effective
42
date amounted to a waiver of those rights, would appear to do just
that. As explained above, during the time that Dias admittedly
“fostered and supported” M.D.’s relationship with Boone, such
conduct by a parent by itself would not have resulted in a loss of
parental rights under existing Georgia law.
Boone suggests that applying the Equitable Caregiver Statute
to this case does not amount to an impermissible retroactive
application of the statute because “no one may acquire a vested
interest in the custody of a minor child.” Smith v. Finstad, 247 Ga.
603, 604 (277 SE2d 736) (1981); see also George v. Sizemore, 238 Ga.
525, 527 (233 SE2d 779) (1977); Adams, 219 Ga. at 634. To the
extent this is an argument that applying OCGA § 19-7-3.1 to the
conduct of a parent undertaken prior to the statute’s effective date
is not really a retroactive application at all because no vested right
is implicated, we cannot agree.14 We have said in allowing
14 To the extent Boone is arguing based on this line of cases that the
retroactive application of OCGA § 19-7-3.1 is constitutionally permissible, we
are not faced with that question here, given that the statute does not contain
a clear indication that it is to be applied retroactively.
43
application of a new statute to a change-of-custody petition as
between legal parents that “[w]here an award of custody is made to
a parent in a divorce action and subsequently there is a change of
circumstances and conditions substantially affecting the welfare of
the child, the parent to whom custody was awarded does not have a
vested right of custody that will defeat further action by the courts.”
Adams, 219 Ga. at 634 (emphasis in original)).
We later applied that principle to permit application of new or
amended statutes to grandparent-visitation petitions. See Smith,
247 Ga. at 604 (permitting application of 1980 statutory amendment
expanding scenarios under which grandparents may seek visitation,
to include scenarios when their own child has died or lost parental
rights through termination, notwithstanding prior decree of
adoption by stepparent); George, 238 Ga. at 528 (permitting
application of new 1976 law permitting grandparent visitation
rights to modify 1975 decision changing custody from grandparents
to father). On their face, these cases could be understood to stand for
the proposition that a new statute may be applied to upset a prior
44
child custody determination. But the possible retroactivity problem
with applying OCGA § 19-7-3.1 to this case that we have identified
is not that it would upset a prior court decree about custody of a
child. Instead, the reason that applying OCGA § 19-7-3.1 arguably
constitutes a retroactive application of the statute is that this would
“ascribe to” Dias’s conduct “essentially different effects” than it
would have had “in view of the law at the time of their occurrence[.]”
Adams, 219 Ga. at 634. In none of the cases cited did this Court
permit the application of a new statute to affect a child custody
determination while acknowledging that doing so would ascribe
different legal effects to a legal parent’s conduct. 15 Thus, these cases
do not stand for the proposition that it is never a retroactive
application of a statute to ascribe to the conduct of a parent
15 In Smith, we noted that an amendment to the state’s relativevisitation statute allowed a grandparent-visitation petition to be filed where
the parental rights of the grandparents’ child had been terminated. See 247
Ga. at 604. But to the extent that the mother in Smith may have consented to
a stepparent adoption resulting in termination of the biological father’s rights
in reliance on prior law that would not make such a decision a basis for a
grandparent-visitation petition — the facts of the case being somewhat unclear
from our opinion — the opinion contains no discussion of that issue and thus
is not a holding on it.
45
undertaken prior to the statute’s effective date different effects on
the question of custody. See State v. Stanford, 312 Ga. 707, 710 (864
SE2d 448) (2021) (“[O]ur precedent makes it clear that questions
which merely lurk in the record, neither brought to the attention of
the court nor ruled upon, are not to be considered as having been so
decided as to constitute precedents.” (citation and punctuation
omitted)).16
16 In Bryan v. Bryan, 242 Ga. 826 (251 SE2d 566) (1979), superseded on
other grounds by statute as noted in Reno v. Reno, 249 Ga. 855, 856 (295 SE2d
94) (1982), cited by Boone to the trial court, we did reject a retroactivity
argument that was based on the notion that the new statute in question would
ascribe different effects to a particular action by one of the parties. In that
case, the issue was whether a new statute requiring a husband’s conduct
toward his wife to be considered in alimony determinations could apply to allow
admission of the husband’s pre-statute adulterous conduct. But that case is
distinguishable because we rested our decision in part on the basis that the
husband could have no vested right engaging in adultery without consequence
to an alimony determination because “in Georgia adultery is now, and at all
times relevant hereto has been, a crime[.]” Bryan, 242 Ga. at 828 (2).
We also note that this Court previously permitted an amended
termination-of-parental rights statute to apply to a case on remand, saying
“[t]here are no vested rights that will be impaired” by application of the
amended statute. See In re L.L.B., 256 Ga. 768, 768 (353 SE2d 507) (1987). A
review of statutory amendments there indicates that they were significant,
including a revision of the statutory grounds permitting termination. See Ga.
L. 1986, pp. 1017, 1018-1023, §§ 3-4. But our failure to discuss these
substantive changes, including whether they would provide a basis for
termination in the particular case before the Court that did not exist
previously, and our statement in the opinion indicating that our decision was
based at least in part on our view that retrial under the new law “may have a
46
Moreover, putting aside what they say about retroactive
application of statutes, these cases do not contain any discussion of
whether application of new statutes to child custody decisions
implicates the fundamental right of a parent to the care, custody,
and control of their children.17 Thus, they are not holdings about the
extent to which applying statutes to ascribe different effects to
conduct by parents undertaken prior the effective date of the statute
violates that particular right. See Stanford, 312 Ga. at 710.18 Here,
salutary effect” given the difficult facts presented there, In re L.L.B., 256 Ga.
at 768-769, make that decision of little help to our retroactivity analysis here.
See Stanford, 312 Ga. at 710.
17 In Smith, we noted that the parents had attacked the grandparent
visitation statute “as against public policy, as unconstitutionally retrospective
as applied to them, and as unconstitutional on a number of grounds wholly
without substance.” 247 Ga. at 604. But our opinion in Smith did not further
elucidate the nature of those arguments besides the retroactivity argument.
George does not discuss the constitutional rights of parents specifically. Nor
did Adams, which involved a dispute between two legal parents.
18 Citing Clark v. Wade, Boone also argues that “statutory and case law
in effect for generations has upheld that a court may intercede where a parent
takes an action that causes significant, ongoing harm to her child.” But that
argument goes to the question of whether a statute can be applied retroactively
under the constitution. We do not reach that question given that we conclude
that the statute contains no clear indication that it is to be applied
retroactively. Moreover, Clark contains no holding about retroactivity; indeed,
the Court ultimately did not apply the statute at issue to the particular facts
of the cases before it at all but remanded for the trial court to do that. See 273 Ga. at 600 (V).
47
as explained above, the Equitable Caregiver Statute may well
infringe on a parent’s constitutional right to the care, custody, and
control of her child, absent a finding that a parent has waived that
right by her conduct. And applying the statute to give such legal
effect to conduct undertaken by a parent prior to the statute’s
effective date — to include situations such as those presented here
where such a putative waiver is premised on such conduct — would
itself raise serious constitutional questions, given that such a waiver
may not be knowing and intelligent given the status of Georgia law
prior to the effective date of the statute. Given those constitutional
questions, and that the statute does not contain a clear indication
that it is to be applied retroactively, we conclude that the statute
does not apply to parental conduct occurring before its effective date.
In sum, Dias’s challenge to OCGA § 19-7-3.1 raises novel,
difficult, and important questions. We have serious concerns about
the constitutionality of the statute, which might be remedied only
by a conclusion that Dias has waived her constitutional right as a
parent to the care, custody, and control of her child. These
48
constitutional questions may largely be obviated by concluding that
any sort of waiver of a constitutional right contemplated by the
statute cannot be premised on conduct by the parent prior to the
statute’s effective date. OCGA § 19-7-3.1 contains no clear indication
that it is to apply to actions by a parent fostering or supporting a
relationship between the petitioner and the child prior to the
effective date of the statute, and we hold that it does not do so.
Because there is no dispute here that Boone’s petition for
adjudication as an equitable caregiver was based on Dias’s actions
undertaken solely prior to the effective date of the statute, the trial
court’s January 2024 order granting Boone equitable caregiver
status and associated custody and visitation is reversed.
Judgment reversed. All the Justices concur.
49