Venticinque v. Lair

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: December 9, 2025

S25A1342. VENTICINQUE v. LAIR.

LAND, Justice.

Krystle Venticinque appeals the trial court’s order granting

Amber Lair, her former romantic partner, joint legal custody and

primary physical custody of Venticinque’s biological minor child,

L.V. Among other things, Venticinque argues that the trial court

erred in adjudicating Lair as an equitable caregiver of the child

under OCGA § 19-7-3.1 and challenges the constitutionality of the

Equitable Caregiver Statute. For the reasons that follow, we vacate

the trial court’s order granting Lair equitable caregiver status,

vacate the trial court’s custody order, and remand this case to the

trial court with direction to apply the correct legal standard under

OCGA § 19-7-3.1.

1. The evidence presented to the trial court shows as follows.
Venticinque and her long-term romantic partner, Lair, lived

together in Savannah. In 2018, the couple decided to start a family.

They submitted photos of Lair to a sperm bank to select a sperm

donor with similar features and determined that Venticinque would

be the biological mother. Lair paid some of the fees related to

Venticinque’s fertility treatments. After Venticinque became

pregnant, she planned a baby shower in which both she and Lair

participated in a gender reveal and picked out items for a baby

registry. Although Venticinque denied that she ever referred to Lair

as L.V.’s mother, she sent Lair birthday cards and messages calling

her “Mommy” and “Mama.” The couple intended to get married,1 for

Lair to formally adopt the child, and for the child to have Lair’s last

name.

When the child, L.V., was born in July 2021, only Lair and

Venticinque were present at the hospital. Lair was the first person

to hold and feed L.V., and she took two weeks off of work after L.V.’s

birth to care for him. After that, Venticinque stayed home with L.V.

1 Although the couple was engaged for several years, they never married.

2
while Lair returned to work. Lair and Venticinque sent out cards

announcing L.V.’s birth that referred to both women as his “proud

parents.” Venticinque also made multiple social media posts in

which she tagged Lair and referred to L.V. as “our baby.”

Witnesses, including Lair, testified at trial that Venticinque’s

personality changed after she delivered L.V. Venticinque began

“sheltering” L.V. and herself from the outside world. In November

2022, when L.V. was 16 months old, Venticinque took L.V. to visit

her family in Pennsylvania. Despite purchasing a return plane

ticket, Venticinque did not return to Savannah.2 Venticinque

testified that she subsequently stopped all contact between Lair and

L.V.

On December 18, 2022, Lair filed an action seeking equitable

caregiver status of L.V. under OCGA § 19-7-3.1 (the “Petition”).

Venticinque responded to the Petition and challenged the

2Venticinque testified that she left Lair due to abuse, that she felt
“pressured” to refer to L.V. as a “Lair baby,” and that Lair did not take on “full
parent responsibility” with L.V., only changing “a handful of diapers and
fe[eding] him a couple of times.”
3
constitutionality of OCGA § 19-7-3.1. On March 27, 2023, the trial

court held a hearing at which Lair, Venticinque, and a family friend

testified. After the hearing, Venticinque filed a motion to dismiss

Lair’s Petition, again arguing that the Equitable Caregiver Statute,

OCGA § 19-7-3.1, is unconstitutional. On June 12, 2023, the trial

court issued an order denying Venticinque’s motion to dismiss

(“June 2023 Order”), finding that the Equitable Caregiver Statute is

constitutional. Specifically, the trial court held that the Equitable

Caregiver Statute is constitutional because it is narrowly tailored to

limit the individuals who may seek equitable caregiver status and

because it directly incorporates the “constitutional standard for

evaluating harm to children” set by this Court in Clark v. Wade, 273

Ga. 587 (2001).

In the June 2023 Order, the trial court analyzed whether Lair

satisfied the statutory requirements for equitable caregiver status,

concluding that Lair had shown, by clear and convincing evidence,

that she was “fully committed to taking a parental role” in L.V.’s life,

had “engaged in the caretaking of the child, and established a bond

4
with the child,” and had fully accepted parental responsibilities for

L.V. “without expectation of financial compensation.” The trial

court then turned to the last statutory requirement, OCGA § 19-7-

3.1(d)(5), stating that it was “next address[ing] whether defendant

[Venticinque] has demonstrated that the child will suffer physical

harm or long-term emotional harm if plaintiff’s [Lair’s] petition is

granted, and whether continuing the relationship between plaintiff

[Lair] and the child is in the best interest of the child.” (emphasis

added). “Considering the factors set forth in OCGA § 19-7-3.1(d),”

the trial court awarded Lair equitable caregiver status of L.V. The

trial court also awarded Lair temporary joint legal custody of L.V.

and visitation time, with primary decision-making authority

remaining with Venticinque.3

On August 14, 2024, when L.V. was approximately two years

old, the trial court held a bench trial to determine custody,

visitation, and child support, at which Venticinque and Lair both

3 This Court declined to grant Venticinque’s application for interlocutory

review of the June 2023 Order.
5
testified. On November 1, 2024, the trial court issued an “Amended

Final Order on Plaintiff’s Petition for Custody, Visitation and Child

Support,” (“Amended Final Order”) in which the trial court relied on

OCGA § 19-9-3 in determining custody and visitation rights. In

relevant part, the trial court granted the parties joint legal custody

of L.V., with Lair having primary physical custody and Venticinque

having visitation rights as set forth in the trial court’s November 4,

2024 Parenting Plan (“Parenting Plan”). On November 26, 2024,

Venticinque appealed the trial court’s Amended Final Order and

Parenting Plan to the Court of Appeals, which transferred the case

to this Court pursuant to our jurisdiction over constitutional

questions. See Ga Const. of 1983, Art. VI, Sec. VI, Par. II(1). This

Court held oral argument in the case on October 21, 2025.

2. Among other things, Venticinque argues that the trial court

erred in awarding Lair equitable caregiver status because it

incorrectly placed the burden of proof on Venticinque to demonstrate

that L.V. would “suffer physical harm or long-term emotional harm

if [Lair’s] petition is granted.” Because we agree that the trial court

6
applied an incorrect standard and erroneously placed the burden of

proof with respect to the issue of harm to the child on Venticinque,

we vacate the trial court’s equitable-caregiver and custody orders

and remand the case to the trial court for application of the correct

statutory standard. Because the constitutionality of the Equitable

Caregiver Statute need not be decided until the trial court

determines whether the statutory requirements have been satisfied,

we do not reach Venticinque’s constitutional challenge.4 See State v.

Randall, 318 Ga. 79, 81 (2024) (“Generally speaking, this Court will

not reach novel constitutional questions when a case can be resolved

without passing on such issues.”).

Under the Equitable Caregiver Statute, a non-parent may seek

rights including custody or visitation if the non-parent “proves that

certain criteria have been met, including that he or she has

4 Although Venticinque’s briefing purports to raise both facial and as-

applied constitutional challenges to the Equitable Caregiver Statute,
Venticinque’s counsel conceded during oral argument that Venticinque did not
have a facial challenge to the Equitable Caregiver Statute. Because the trial
court applied the incorrect legal standard, the Equitable Caregiver Statute was
never properly applied to Venticinque and her as-applied challenge is not
properly before this Court for review.
7
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.’” Dias v. Boone, 320 Ga. 785, 785

(2025) (quoting OCGA § 19-7-3.1(d)). The statute “provides both

procedural and substantive requirements for an individual to

establish ‘standing to maintain the action’ to be adjudicated as an

equitable caregiver.” Id. at 786 (quoting OCGA § 19-7-3.1(b), (d)).

Relevant here, OCGA § 19-7-3.1(d)(5) states that

[i]n order to establish standing, the court shall first find,
by clear and convincing evidence, that the individual has
… [d]emonstrated 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.

(emphasis added). In other words, “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” if

the petition is not granted. Dias, 320 Ga. at 797 (cleaned up). See

also id. at 786 (it is “the individual seeking equitable caregiver

status” who “must establish by clear and convincing evidence each

8
of five statutory prerequisites”). Thus, the Equitable Caregiver

Statute requires Lair, as the individual seeking equitable caregiver

status, to demonstrate that L.V. will suffer harm if Lair’s petition is

not granted. It places no burden on Venticinque, the mother of L.V.,

to prove anything with respect to the issue of harm to the child.

The trial court’s June 2023 Order, however, incorrectly placed

the burden on Venticinque to demonstrate that L.V. would suffer

harm if Lair were granted equitable caregiver status. See June 2023

Order at 6-7 (“The Court next addresses whether [Venticinque] has

demonstrated that the child will suffer physical harm or long-term

emotional harm if [Lair’s] petition is granted[.]”). Accordingly, we

vacate the trial court’s June 2023 Order granting Lair equitable

caregiver status and remand the case with direction to apply the

correct standard under OCGA § 19-7-3.1.5 Because we are vacating

5 Because we are vacating the trial court’s June 2023 Order granting Lair

equitable caregiver status, we must also vacate the Amended Final Order and
Parenting Plan, which are predicated on Lair’s equitable caregiver status. See
Franklyn Gesner Fine Paintings, Inc. v. Ketcham, 259 Ga. 3, 4 (1989) (“The
legal effect of the reversal of a judgment on appeal is to nullify the judgment
below and place the parties in the same position in which they were before
judgment.” (quoting Kirkland v. Southern Discount Co., 187 Ga. App. 453
(1988))).
9
the trial court’s orders on statutory grounds, we do not reach

Venticinque’s constitutional challenge to OCGA § 19-7-3.1 or her

other enumerations of error. See Randall, 318 Ga. at 81.

Judgment vacated and case remanded with direction. All the
Justices concur.

10
PETERSON, Chief Justice, concurring.

I concur fully in the Court’s decision to vacate the trial court’s

orders and remand for the trial court to reconsider Lair’s petition

while properly putting the burden of proof on her as the putative

equitable caregiver. I write separately to offer additional guidance

for consideration of petitions under the Equitable Caregiver Statute

— a statute that, as we noted in Dias v. Boone, 320 Ga. 785 (2025),

raises significant constitutional concerns. In particular, I want to (1)

reemphasize that every remedy under the Equitable Caregiver

Statute must be tailored to the harm to the child caused by the

parent’s particular decision regarding the child’s contact with an

adjudicated equitable caregiver; (2) explain why the Equitable

Caregiver Statute cannot evade that requirement by creating a new

class of persons with the constitutional rights of parents; and (3)

explain why the mere existence of the Equitable Caregiver Statute

at the time of actions by a parent fostering or supporting a parent-

like relationship between a child and a third party is insufficient to

satisfy the requirement that any waiver of a constitutional right

11
must be knowing.

1. Any remedy under the Equitable Caregiver Statute must

be tailored to the harm to the child caused by the parent’s particular

decision regarding the child’s contact with an adjudicated equitable

caregiver.

This is a case that presents serious issues about the nature of

fundamental rights. Are they creations of government, such that

government can change them? Or do they pre-exist government,

such that constitutional protections are merely guarantees of rights

that already existed? Certainly, at least some fundamental rights

predate the United States Constitution. See Ammons v. State, 315

Ga. 149, 166 (2022) (noting distinction between “those rights which

owe their existence to the Federal government, its National

character, its Constitution, or its laws” and “other fundamental

rights — rights that predated the creation of the Federal

Government and that the State governments were created to

establish and secure” (quotation marks omitted, quoting McDonald

v. City of Chicago, 561 US 742, 754 (2010))). And the right of fit

12
parents to the care, custody, and control of their children is one of

those, having “found recognition in the common law of England long

before Georgia adopted the common law as our own[.]” Dias, 320 Ga.

at 795.

Indeed, as we have explained, “parents have a fundamental

liberty interest in the care, custody, and management of their

children.” Clark v. Wade, 273 Ga. 587, 593 (2001) (plurality opinion).

See also Nix v. Dept. of Human Resources, 236 Ga. 794, 795 (1976)

(“There can scarcely be imagined a more fundamental and fiercely

guarded right than the right of a natural parent to [her] offspring.”).

This “fundamental liberty interest of natural parents in the care,

custody, and management of their child does not evaporate simply

because they have not been model parents or have lost temporary

custody of their child to the State.” Santosky v. Kramer, 455 US 745,

753 (1982).

This “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.” Dias, 320 Ga. at 794–95 (citing Troxel v.

13
Granville, 530 US 57, 65 (2000) (plurality opinion); Patten v. Ardis,

304 Ga. 140, 143–44 (2018)). The United States Supreme Court has

recognized the right as protected by the Due Process Clause of the

Fourteenth Amendment. See Troxel, 530 US at 66. This Court

recognized this right as early as 1858, see Rives v. Sneed, 25 Ga. 612,

622 (1858), and “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.”

Dias, 320 Ga. at 795.

Our case law makes clear that interference with the fit legal

parent’s decision-making “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.” Dias, 320 Ga. at 798. See also Patten, 304

Ga. at 140, 144–45 (holding that grandparent-visitation statute

14
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 and convincing proof that those decisions

have harmed or threatened to harm the child”; non-parent visitation

may not be imposed “over the objection of fit parents based simply

on the best interests of the child, without a clear and convincing

showing of actual or imminent harm to the child”); Brooks v.

Parkerson, 265 Ga. 189, 193–94 (1995) (“The [United States]

Supreme Court has made clear that state interference with a

parent’s right to raise children is justifiable only where the state acts

in its police power to protect the child’s health or welfare, and where

parental decisions in the area would result in harm to the child.

Likewise, … we find that implicit in Georgia cases, statutory and

constitutional law is that state interference with parental rights to

custody and control of children is permissible only where the health

or welfare of a child is threatened. With the foregoing in mind, we

find the [grandparent-visitation statute] falls short both in its

15
apparent attempt to provide for a child’s welfare and in its failure to

require a showing of harm before visitation can be ordered.”

(citations omitted)).

A person who satisfies the statutory criteria for adjudication as

an equitable caregiver may be able to show that a child will suffer

such harm if the relationship between the two is severed completely

and the equitable caregiver is afforded no contact with the child. I

can imagine such a scenario in which, notwithstanding a parent’s

constitutional rights, a court permissibly may override a fit parent’s

decision not to allow visitation between the parent’s child and an

equitable caregiver, on the basis that denying such visitation

threatens serious emotional or mental harm to the child. But as we

said in Dias, “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.” 320 Ga. at 798. If the child’s parent is

fit, it seems difficult to show that a child will suffer the sort of harm

that justifies State intervention by allowing that fit parent, rather

16
than a third party, to make decisions about the child’s education,

extracurricular activities, health, and religious upbringing. 6

2. The Equitable Caregiver Statute cannot evade the

requirement to show harm from parental decisions before interfering

with them by creating a new class of persons with the constitutional

rights of parents.

Notwithstanding this constitutional requirement of showing

harm to the child before the State will interfere with a fit parent’s

decisions about their child, 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[,]” and “contains no presumption that it is in the

best interests of a child to be in the custody of her legal parent.”

6 Venticinque argues that any “awards of visitation can only be such

‘narrowly tailored’ contact to serve the compelling state interest in protecting
children from harm [and] thus contact must be in increments, such as phone
calls, Zoom calls, a few hours monthly or less often, only as necessary, shown
by clear and convincing evidence, to alleviate significant, long-term emotional
harm.” Although that analytical approach may be consistent with our case
law, I recognize that an adjudicated equitable caregiver may be able to make
a record that more fulsome interaction than Zoom calls is required to prevent
serious emotional harm to the child.
17
Dias, 320 Ga. at 797. And the Equitable Caregiver Statute does not

explicitly require that “relief awarded to an equitable caregiver be

narrowly tailored to the harm or threatened harm that has been

shown.” Id.

Instead, the Equitable Caregiver Statute requires a putative

equitable caregiver to show “standing” by establishing, among other

things, “that the child will suffer physical harm or long-term

emotional harm” — harm from what, the statute leaves unspecified

— “and that continuing the relationship between [the putative

equitable caregiver] and the child is in the best interest of the child.”

OCGA § 19-7-3.1(d)(5). The Equitable Caregiver Statute goes on to

state that the trial court may afford someone “adjudicated” as an

equitable caregiver “parental rights and responsibilities …

including, but not limited to, custody or visitation.” OCGA § 19-7-

3.1(b), (g).

Understandably given this language, and given that the trial

court here issued the relevant orders prior to the (admittedly

limited) guidance we provided in Dias, the trial court appears to

18
have treated the legal parent, Venticinque, and the adjudicated

equitable caregiver, Lair, as if they were both parents, as one would

in the familiar context of a custody determination after divorce of

two parents. The trial court referenced “the Solomonic task of

assigning the custody of children,” quoting an opinion in a custody

matter in the context of a divorce. Weickert v. Weickert, 268 Ga. App.

624, 626–27 (2004). The court then went on to consider the factors

typically used to determine custody in a divorce context, essentially

rating both Venticinque and Lair on the various statutory criteria,

including each person’s “home environment,” “knowledge and

familiarity of the child and the child’s needs,” and “capacity and

disposition … to provide the child with food, clothing, medical care,

day-to-day needs, and other necessary basic care[.]” OCGA § 19-9-

3(a)(3)(D)–(F). The trial court rated the parties “equal” on most of

the statutory criteria, but found that two criteria, “past performance

and relative abilities for future performance of parenting

responsibilities” and “willingness and ability of each of the parents

to facilitate and encourage a close and continuing parent-child

19
relationship between the child and the other parent,” OCGA § 19-9-

3(a)(3)(M)–(N) (emphasis added), were “more favorable” to Lair.

Applying these criteria, the trial court awarded joint legal custody,

with Lair having primary custody and tie-breaking decisional

authority. That approach — although appropriate for a custody

determination between two parents — cannot be squared in this

context with the requirements of our caselaw. And to the extent that

approach might be understood as permitted by the language of the

Equitable Caregiver Statute, this highlights a significant

constitutional problem with that statute.

When determining custody between two parents, both parents

generally have the same constitutional rights. But in deciding issues

of custody and visitation under the Equitable Caregiver Statute, a

trial court is faced with a parent, who has the constitutional rights

of a parent, and an equitable caregiver, who is not a parent and so

does not have the constitutional rights of a parent. This is not to

demean in any way equitable caregivers, who by definition will have

“[f]ully and completely undertaken a permanent, unequivocal,

20
committed, and responsible parental role in the child’s life[.]” OCGA

§ 19-7-3.1(d)(1).

Lair argues on appeal that it is proper to treat a parent and an

adjudicated equitable caregiver as constitutional equals for

purposes of determining custody under OCGA § 19-9-3, because

“[o]nce the trial court bestows caregiver status, the courts should no

longer view the case through the prism of parent and non-parent,”

as “[t]he equitable caregiver obtains parental status, no different

than adoption.” Serious constitutional concerns would arise if the

statute clearly operated as Lair argues.

Placing the legal parent and the adjudicated equitable

caregiver on equal constitutional footing — as the trial court

apparently did here — presumes that the General Assembly has the

power to create a new class of persons who enjoy the fundamental

constitutional rights of a parent. I am skeptical that the General

Assembly has such power; the nature of constitutional rights seems

incompatible with the idea that a mere statute can create or expand

21
the meaning of a constitutional right. 7

Lair posits that “[t]here are certainly scenarios in which there

may be such significant harm to a minor child to permit a non-

7 See Regents of Univ. of Mich. v. Ewing, 474 US 214, 229 (1985) (Powell,

J., concurring) (“While property interests are protected by procedural due
process even though the interest is derived from state law rather than the
Constitution, substantive due process rights are created only by the
Constitution.” (citation omitted)); Minnesota Deer Farmers Assoc. v.
Strommen, 146 F4th 664, 671 (8th Cir. 2025) (statutory recognition of deer
farming as an occupation does not render it a fundamental right; “A state
statute cannot create a fundamental Constitutional right.”); Harrill v. Blount
County, 55 F3d 1123, 1125 (6th Cir. 1995) (state statute allowing arrestees
opportunity to make a phone call promptly does not create a federal due
process right; “A state statute cannot ‘create’ a federal constitutional right.
Some state statutes may establish liberty or property interests protected by
the Due Process Clause, but this statute creates neither a federally protected
liberty or property interest.”); McKinney v. Pate, 20 F3d 1550, 1556 (11th Cir.
1994) (en banc) (“[A]reas in which substantive rights are created only by state
law (as is the case with tort law and employment law) are not subject to
substantive due process protection under the Due Process Clause[.]”),
abrogated on other grounds as stated in Littlejohn v. School Bd. of Leon
County, 132 F4th 1232, 1240–41 (11th Cir. 2025). And absent establishing that
the original public meaning of the relevant federal or constitutional provision
protecting parent rights included the rights of someone who is not a biological
parent and who did not assume parentage after the biological parent died or
wholly waived those rights, e.g., by voluntary contract or abandonment, see
OCGA § 19-7-1(b), a person does not receive any constitutional rights as a
parent merely because a trial court has adjudicated them as an equitable
caregiver under the statute. Cf. Miller v. California, 355 F3d 1172, 1176 (9th
Cir. 2004) (recognition of grandparents as “‘de facto’ parents” under California
law merely gave grandparents “an interest in the care of the child that is
entitled to legal protection” and “the right to be present, to be represented and
to present evidence in a dependency proceeding”; “de facto parents are not
equated with biological parents” and that status “conferred no other, or
weightier interest of constitutional dimension”).
22
biological parent to obtain custody over their child,” arguing that

“fitness or unfitness of a parent is not always a binary and absolute

conclusion, particularly when mental health is considered.” Lair

suggests that the Equitable Caregiver Statute allows an adjudicated

equitable caregiver to obtain physical custody where a biological

parent experiences “occasions” or “episodes” of unfitness, “while also

preserving the biological parent’s ability to exercise some parental

rights when that parent is fit to do so.” But the removal of a child

from her parent’s home due to parental unfitness, even temporary

removal, is governed by Article 3 of the Juvenile Code, and contains

elaborate procedural and substantive requirements for such

removal that the Equitable Caregiver Statute does not begin to

replace. See OCGA § 15-11-100 et seq.8 And to the extent that Lair

means to suggest that the Equitable Caregiver Statute merely

provides a mechanism for identifying an alternative placement for a

8 Moreover, the Equitable Caregiver Act specifies that the “adjudication

of a person under this Code section as an equitable caregiver does not
disestablish the parentage of any other parent.” OCGA § 19-7-3.1(j). Whatever
this means, at the very least it means that the statute does not provide a
mechanism for removing a child from the custody of an unfit parent.
23
child taken into foster care consistent with the procedures set forth

in Article 3, the legislation that enacted the Equitable Caregiver

Statute did not also amend those pertinent provisions of Article 3.

See Ga. Laws 2019, pp. 632, 632–36 § 1; see also OCGA § 15-11-

135(c) (setting forth the only permissible foster care placement

options, including among other places the home of the child’s

noncustodial parent, a relative, or fictive kin).9

Lair also suggests that an “[a]lternative[]” basis for affording

primary custody to an equitable caregiver is found in the facts of this

case, specifically Venticinque’s contemptuous disregard of the trial

court’s June 12, 2023, order affording Lair visitation rights. But Lair

does not seriously argue how Venticinque’s resistance to the trial

court’s visitation order harmed the child, saying simply that the

9 A person who meets the criteria for adjudication as an equitable
caregiver under OCGA § 19-7-3.1 might also meet the definition of fictive kin,
allowing for consideration as a possible foster care placement. See OCGA § 15-
11-2(33) (defining “fictive kin” as “a person who is not related to the child by
blood, marriage, or adoption but who prior to his or her placement in foster
care is known to the family, has a substantial and positive relationship with
the child, and is willing and able to provide a suitable home for the child”). But
that also means that the Equitable Caregiver Statute does not serve a purpose
in allowing such a foster care placement.
24
“trial court implicitly found that visitation for Lair was insufficient

given Venticinque’s continuous contempt” and “the trial court

elected to transfer primary physical custody to Lair with significant

visitation rights to Venticinque to satisfy the best interests of the

child while also balancing both parent’s rights.” (Emphasis added.)

If Lair means to suggest that the harm requirement was satisfied

here because the child would be harmed without contact between

Lair and the child, and transferring custody was the trial court’s

only available means for enforcing its order for such contact, Lair

fails to appreciate that the trial court can enforce its visitation order

through other means. The trial court may enforce its order through

its contempt power; it does not need to resort to placing custody with

the equitable caregiver in order to prevent any harm that might be

caused by a lack of visitation between the equitable caregiver and

the child. See OCGA § 15-6-8(5) (superior courts have the authority

to “punish contempt by fines not exceeding $1,000.00, by

imprisonment not exceeding 20 days, or both”). Indeed, the trial

court here suspended a 20-day jail sentence for Venticinque’s

25
contempt of its visitation order, “conditioned upon no subsequent

violations of this [c]ourt’s order as it relates to contact and all of the

other provisions that the [c]ourt has put in place.”10

All of this said, it seems clear to me that the statute — no

matter what it might purport to permit — does not prohibit trial

courts from applying the statute in ways that comport with

applicable constitutional precedent. The statute plainly does not

require trial courts determining what relief to award an equitable

caregiver to deem that the equitable caregiver possesses rights

equivalent to the parent’s fundamental constitutional rights. And in

the absence of such a requirement, trial courts should fashion relief

under the statute understanding that the relief awarded must

comply with our precedent limiting the State’s interference with

fundamental parental rights.11

10 Venticinque enumerates no error in the process by which such
contempt order was imposed here.
11 For this reason, I am skeptical that OCGA § 19-9-3 is the appropriate

legal framework to govern decisions about relief under the statute. OCGA § 19-
9-3 assumes that it is governing custody decisions between parents, and states
accordingly that there is not even a presumption in favor of either parent.

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3. The mere existence of the Equitable Caregiver Statute at

the time of relevant actions by a parent fostering or supporting a

parent-like relationship between a child and a third party does not,

without more, show a knowing waiver of a constitutional right.

The requirement to ground any relief under the Equitable

Caregiver Statute in a showing of serious harm to the child in the

absence of such relief is based on the parent’s constitutional right to

the care, custody and control of her child. And we observed in Dias

that even fundamental constitutional rights can be waived. See 320

Ga. at 799. Relying on this dicta in Dias, Lair argues that

Venticinque “waived her right to exclusive parenthood.” But Lair

ignores critical caveats on that point in Dias. “In most contexts, a

waiver of constitutional rights must be knowing, voluntary, and

intelligent in order to be effective.” Id. (citing cases). “And in order

to be knowing and intelligent, a waiver must be done with sufficient

O.C.G.A. § 19-9-3(a)(1). And so the factors it outlines for consideration must be
understood in that context. But fundamental parental rights require
considerably more than a mere presumption in favor of the parent relative to
third parties like equitable caregivers.
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awareness of the likely consequences.” Id.

Waiver could not have applied in Dias, because all of the

conduct that might have supported waiver occurred before the

effective date of the Equitable Caregiver Statute. Id. at 801–06. But

nothing we said in Dias supports the idea that the mere existence of

the Equitable Caregiver Statute can substitute for actual knowledge

of the likely consequences of conduct that could constitute waiver.

Lair argues that the law presumes that “every citizen knows the

law.” 12 But this presumption — although critical to our system in

12 Lair does not cite OCGA § 1-3-6, which provides: “After they take
effect, the laws of this state are obligatory upon all the inhabitants thereof.
Ignorance of the law excuses no one.” Although this provision has been applied
in a variety of contexts, it does not appear to stand for the proposition that we
can presume a knowing waiver of a constitutional right from the mere
existence of a Georgia statute. See, e.g., Heywood v. State, 292 Ga. 771, 778–
79 (2013) (citing OCGA § 1-3-6 in rejecting argument that a validly enacted
law takes effect for ex post facto purposes only after it has been added to the
compilation of Georgia laws contained in the Georgia Code); Cornell v.
Camellia Corp., 248 Ga. 449, 450 (1981) (citing precursor to OCGA § 1-3-6 in
concluding that civil defendant’s ignorance of safety regulation would “not
relieve [it] of [its] statutory duty”); O’Callaghan v. Bank of Eastman, 180 Ga.
812, 820 (1935) (citing precursor to OCGA § 1-3-6 in concluding that ignorance
of the law does not suspend a statute of limitations). Nor can a statutory rule
supplant the constitutional rule that waivers of constitutional rights must be
knowing. See Owens v. Hill, 295 Ga. 302, 315 (2014) (acknowledging “the
unquestionable rule that constitutional provisions take supremacy over
legislative enactments when the two are in irreconcilable conflict and that the

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many ways — is a legal fiction. No citizen — not even a single justice

of this Court, or of the Supreme Court of the United States —

actually knows all the laws. And the Supreme Court of the United

States has long made clear that waiver of fundamental

constitutional rights requires actual knowledge. See, e.g., Brady v.

United States, 397 US 742, 748 (1970) (“Waivers of constitutional

rights not only must be voluntary but must be knowing, intelligent

acts done with sufficient awareness of the relevant circumstances

and likely consequences.”); Johnson v. Zerbst, 304 US 458, 464–65

(1938) (“[C]ourts indulge every reasonable presumption against

waiver of fundamental constitutional rights and … we do not

presume acquiescence in the loss of fundamental rights. A waiver is

ordinarily an intentional relinquishment or abandonment of a

known right or privilege. The determination of whether there has

been an intelligent waiver of right to counsel must depend, in each

case, upon the particular facts and circumstances surrounding that

judiciary has an independent, constitutionally-mandated role to ensure that
the constitution is enforced when it is in conflict with a legislative enactment”).
29
case, including the background, experience, and conduct of the

accused. … The purpose of the constitutional guaranty of a right to

counsel is to protect an accused from conviction resulting from his

own ignorance of his legal and constitutional rights, and the

guaranty would be nullified by a determination that an accused’s

ignorant failure to claim his rights removes the protection of the

Constitution.” (footnotes and quotation marks omitted)).

Lair primarily cites three cases in support of waiver, but none

of them applies here. The first case, Georgia v. Public.Resource.Org,

Inc., 590 US 255 (2020), was about whether federal copyright law

extends to annotations in Georgia’s official annotated Code, and

invoked the presumption that all citizens know the law merely as

support for the necessity of statutes being available to the public. Id.

at 265. The second case, Gjerjaj v. Holder, 691 F3d 288 (2d Cir. 2012)

(per curiam), involved an asylum applicant’s challenge to a waiver

of the right to contest removal she signed as a condition of entry. She

argued that she did not knowingly waive her rights to contest her

removal. In rejecting that argument, the court noted that the asylum

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applicant “was presumed to know the law and her rights when she

read and signed the waiver,” but the court also relied on its

conclusion that she failed to present “any evidence … that she did

not understand the language in which the document was written.”

Id. at 292. This case, of course, does not include a signed waiver.

And Lair actually undermines her argument in her citation to

a third case, Durden v. Johnson, 194 Ga. 689 (1942). Lair cites

Durden for the principle that Georgia law has long permitted a

parent to give up parental rights by contract. And indeed, that has

long been the law of Georgia. See OCGA 19-7-1(b)(1) (“Parental

power shall be lost by … [v]oluntary contract releasing the right to

a third person[.]”). But as long as that has been the law, Georgia

courts have enforced significant safeguards around it. See Miller v.

Wallace, 76 Ga. 479, 487 (1886) (“Where it is insisted that the father

has relinquished his right to the custody of his child to a third

person, by contract, which he might undoubtedly have done, yet the

terms of the contract, to have the effect of depriving him of its

control, should have been clear, definite and certain.” (quotation

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marks omitted)). This requirement that the terms of such a contract

be clear, definite, and certain effectively prevent such a contract

from being entered into without actual knowledge, and thus

undermines Lair’s argument. In short, nothing Lair cites stands for

the proposition that the existence of the Equitable Caregiver

Statute, by itself, establishes a parent’s actual knowledge of the

likely consequences of conduct that could constitute a waiver.

I am authorized to state that Justice Bethel joins in this

concurrence.

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