Venticinque v. Lair

Krystle Venticinque and her longtime partner Amber Lair planned and raised a child together, though only Venticinque was the biological and legal mother. After the couple separated and Venticinque cut off contact, Lair asked a Chatham County trial court to name her an equitable caregiver under a Georgia law that lets certain non-parents seek custody or visitation rights. The trial court granted Lair that status and later gave her joint legal custody and primary physical custody of the child, with Venticinque getting visitation. Venticinque appealed, arguing the trial court used the wrong legal test by making her prove the child would be harmed if Lair won caregiver status, when the law actually requires the person seeking caregiver status to prove the child would be harmed without that relationship. The Supreme Court of Georgia agreed, vacated the equitable caregiver ruling and the later custody order that depended on it, and sent the case back for the trial court to apply the correct standard. It did not decide whether the caregiver law is constitutional.

Under Georgia's Equitable Caregiver Statute (OCGA § 19-7-3.1), the person seeking to be recognized as an equitable caregiver, not the child's legal parent, must prove by clear and convincing evidence that the child will suffer physical or long-term emotional harm without that relationship; the trial court reversed this burden.

The ruling clarifies that in Georgia, someone who is not a legal parent, not a biological mother or father, bears the burden of proving harm to a child before a court can grant them custody or visitation rights over a fit parent's objection, protecting parents from having that burden shifted onto them.

Vacated and remanded with direction

1. Georgia's Equitable Caregiver Statute (OCGA § 19-7-3.1) lets a non-parent seek custody or visitation only if that person proves, among other things, that the child would suffer physical harm or long-term emotional harm without the relationship, and that continuing it serves the child's best interest.
2. The statute places this burden of proof on the person seeking caregiver status, here Lair, not on the child's legal parent, here Venticinque, to show anything about potential harm.
3. The trial court's 2023 order instead asked whether Venticinque had shown the child would be harmed if Lair's request were granted, effectively flipping the burden onto the parent rather than the person seeking caregiver rights.
4. Because the later custody order and parenting plan were built entirely on the earlier, legally flawed equitable caregiver ruling, both had to be undone once that ruling was vacated.
5. Since the case could be resolved on this statutory burden-of-proof error alone, the court did not need to decide whether the Equitable Caregiver Statute is constitutional, following the general rule that courts avoid ruling on constitutional questions when a case can be resolved another way.

• equitable caregiver statute
• child custody dispute
• same-sex parenting rights
• parental rights
• burden of proof