When circumstances like alcohol and drug abuse or mental health issues make a child's parents unfit, when a child is being deprived of shelter, supervision or the necessities of life or when abuse and neglect are factors, it is necessary for caring, stable adults to intervene.
Grandparents, relatives and close family friends can be awarded custody rights to children in certain circumstances. This is certainly easier and simpler if the parent consents to relinquishing custody, but transferring custody can also be accomplished even if the parent opposes the idea, particularly when the parent is impaired.
Many children in Georgia are being raised by their grandparents, great-grandparents, or other relatives. According to the 2000 census figures, approximately 8% of children nationwide are being raised by a grandparent or grandparents.
When Georgia courts consider granting child custody to grandparents or relatives, they consider the "best interests of the child." The best interests test consists of factors such as the physical and emotional health of the child and his or her safety and welfare. Courts also can consider the wishes of the children and their relationships with the proposed caregivers.
Attorney Leslie Stewart can assist grandparents, relatives, and close family friends in bringing actions in juvenile or probate court to have children removed from the parent's home and placed in their legal and physical custody.
Here are some typical scenarios:
1) If the parent agrees to relinquish custody and you are a grandparent, a grandparent power-of-attorney will provide the easiest and most cost-effective option.
2) If the parent agrees to relinquish custody and you are not a grandparent, you may want to consider going to probate court and obtaining a guardianship.
3) If the parent cannot be located, a probate court guardianship or juvenile court custody petition are both options.
4) If the parent's address is known and he or she is opposed to relinquishing custody, but there is evidence of maltreatment or neglect, there are several options available to you:
Each option has risks and benefits. For instance, if there is a need to place the child on your family's health insurance policy, a guardianship will be preferable to a custody order, which most private insurers do not consider sufficient for coverage. On the other hand, if you obtain temporary custody from a juvenile court, the child will generally be eligible for Medicaid coverage.
When children are placed in the custody of DFCS as a result of your notification, there is no guarantee that the child will be placed in your home. In fact, unless and until DFCS makes a determination that you are not part of the family problem, you may be prohibited from even communicating with or visiting the child. This process can sometimes take months.
Because of the unpredictability of the caregiver's status when DFCS is involved in a case, some relatives opt to handle these situations as private family matters. In those circumstances, while it is still possible for DFCS to become involved, retaining an attorney who can handle the case appropriately becomes more important.
A terrific legal resource for low income families caring for relative children in adoption or custody cases in Fulton or Dekalb County is the Grandparent/Relative Caregiver Project sponsored by Atlanta Legal Aid. http://www.atlantalegalaid.org/ar.pdf#page=13
In Georgia, a child can be found to be deprived when he or she has been neglected, abused, left unattended without supervision, or allowed to miss excessive days of school.
The Georgia code lists four circumstances in which a child can be considered deprived.
If the child is:
A deprivation action is usually filed by the Department of Family and Children Services (DFCS) upon receiving a notice, report, or referral from someone claiming that a child has been abused. However, the Georgia Code allows deprivation actions to be filed by any private person who has knowledge of the conditions giving rise to the deprivation.
The petition alleging deprivation may be made by any person who has knowledge of the facts alleged and believes that they are true. O.C.G.A. 15-11-38. This individual may be an extended family member or close family friend.
Neglect is unacceptable even if it arises as the result of poverty or mental illness. Vermilyea v. Dept. of Human Resources, 155 Ga. App. 746 (1980). The Vermilyea court held that "unfortunate economic and personal circumstances" are not an excuse for parents to ignore the basic hygiene and medical needs of their children. The condition of the subjects of the petition in this case shocked the conscience of the court. "Even the poorest of the poor can be expected to maintain reasonably clean and hygienic living conditions." Id. at 750.
In neglect cases, clear, specific, tangible evidence (e.g., photographs, eyewitnesses giving vivid descriptions based on direct, continuous observation) is necessary for a positive resolution.
One important note: Neglect is not a comparative condition. A child canot be declared "deprived" simply because the child might be considered "better off" in a different environment.
2) Physical Abuse
Physical abuse is defined in Georgia as physical injury or death inflicted upon a child by a parent by other than accidental means. This broad category covers the waterfront, and as we have seen with cases such as the House of Prayer, opinions differ widely about the degree of injury which is legally acceptable. Some cases obviously qualify as physical abuse, and others are more subtle. In Georgia, physical forms of discipline such as spanking may be used as long as there is no physical injury to the child.
3) Emotional Abuse
We have all seen or know parents who are verbally abusive and cause their children to be traumatized. Sometimes, we will see strangers in a store saying incredibly cruel things to their helpless child. However, emotional abuse cases are among the most difficult to prove. Not only specific, first-hand evidence is critical, but expert testimony based on evaluation of the child and his/her parents may be necessary.
4) Unstable Lifestyle
Some emotional abuse cases are based on the idea that frequent moves from home to home can prevent the successful formation of a parent-child relationship. A child can thus be deprived of a sound environment built upon love and nurture. There can be a substantial danger that the child will suffer emotional as well as physical, mental, and moral harm. Elrod v. Dept. of Family and Children Services, 136 Ga. App. 251 (1975). Particular care must be exercised in deciding whether an emotional abuse case should be filed to avoid making the child's environment even more hostile.
Georgia courts recognize that children need stable and permanent homes.
Juvenile courts will not accept a deprivation petition filed by one parent against another because it is a prima facie custody matter, and most likely an attempt to gain custody of the child by bypassing a more stringent standard of proof necessary to modify a custody award.
Generally, private individuals who file deprivation actions must retain their own attorneys. DFCS is represented by Special Assistant Attorney Generals (SAAGs); the children are entitled to an attorney paid by the state to represent them; and if the parents in a deprivation action cannot afford legal representation, court-appointed attorneys are assigned.
Interestingly, while the judge is authorized to appoint legal counsel to represent the petitioner, O.C.G.A. 15-11-41(c), this rarely occurs. It is highly recommended that private petitioners obtain legal counsel. If the petitioners in a private deprivation case do wish to be represented, they must locate an attorney who has expertise practicing in juvenile courts, usually under extremely tight deadlines.
Attorney Stewart can help you evaluate the strength of an abuse or neglect case and can assist you in filing a petition for private deprivation.
If you have a child in your physical custody and you are not that child’s parent, you lack the authority to enroll the child in school, obtain medical treatment for the child or otherwise control the child without first becoming the legally-qualified Temporary Guardian of a Minor Child through the Probate Court of your county of residence.
Guardianships for children in Georgia are often called "school guardianships." Friends or relatives often care for a child uneventfully until they attempt to register the child for school. Then, the need for legal documentation of their right to have custody of the child often becomes apparent.
A guardianship is a legal relationship wherein a court appoints a person (a guardian) to make certain decisions for another person (a ward) proven to need such assistance.
Sometimes parents recognize that they are temporarily unable to care for their minor children and place them with a friend or relative who can care for the children until the parents can do so again. In these situations, a voluntary Temporary Guardianship of a Minor can be useful to all the parties so that the Temporary Guardian can enroll the child in school or summer camp and authorize medical treatment.
Guardianships generally require that the parents temporarily give up or relinquish their parental rights. The usual exception to this requirement is when the parents cannot be located.
In Georgia, probate courts may also appoint guardians or temporary guardians of the persons of minor children even if the absence of the parent's consent in certain circumstances.
If a parent objects to a proposed guardianship, the court will automatically dismiss the guardianship unless
If an objection is filed, the probate judge will transfer the case to the juvenile court, which will give both sides notice and hold a hearing.
A guardianship can be created on an emergency basis, and it can be temporary or permanent.
The court must insure that your home is an appropriate place for the child. Therefore, the petitioner(s) and anyone over 18 years old who is living in the same household where the child will be living must fill out and sign a consent form allowing the Probate Court to receive information concerning their criminal records.
Attorney Stewart can help foster parents or extended family members apply for and obtain legal guardianship over minor children. This involves gathering all necessary birth and medical papers, as applicable, and completing the forms required for establishing justifiable cause to obtain temporary or permanent legal guardianship.
On 5/13/08, Governor Perdue signed the newly-enacted "Care of a Grandchild Act."
This legislation was designed to assist families to transfer custody when necessary without the expense or involvement of the court system. The General Assembly recognized that an increasing number of relatives in Georgia, including grandparents and great-grandparents, have been providing care to children who cannot reside with their parents due to the parent´s incapacity or inability to perform the regular and expected functions to provide such care and support.
With a stroke of a pen, a parent of a minor child in Georgia may now delegate to any grandparent residing in this state caregiving authority regarding the minor child when hardship prevents the parent from caring for the child.
Hardships may include, but are not limited to:
It must be noted that these powers of attorney cannot be used for the purpose of avoiding a DFCS investigation or to establish residency which might allow the child to attend a more desirable school.
Ms. Stewart can assist families with the necessary paperwork to create this special power of attorney. In the event that a power of attorney is rejected by a school system, it is recommended that the appeal process be handled by an attorney.
Contact the Law Office of Leslie Stewart to talk with us about grandparent custody, extended family custody, and guardianship. Attorney Stewart can assist in determining which type of custody or guardianship will best suit your needs and that of the child. We can be reached at 678 592 8592. Initial phone consultations are free.
Proceedings in a juvenile court are very different from other matters that come before other courts.
Juvenile Courts are closed courts in Georgia, meaning that only those persons who are relevant to the case are allowed to be in the courtroom. As a result, attorneys who practice in juvenile court only occasionally have little opportunity to become proficient.
The determination of whether a child is deprived focuses on the needs of the child regardless of whether the behavior of the child's parents either caused the child's deprivation or could have prevented it. Brown v. Fulton Co. Dept. of Family and Children Services, 136 Ga. App. 308 (1975)
For instance, where a child has been sexually abused by her father, it is appropriate to remove a child from the care and custody of her mother as well if her mother did not believe that the abuse was occurring and was unwilling to shield the child from danger by leaving the home of the father. In the Interest of B.H., 190 Ga. App.131 (1989).
NEW LAW HELPS GEORGIA CHILDREN
House Bill 1040, signed by Governor Perdue on May, 14, 2008, grants jurisdiction to juvenile courts for the appointment of a permanent guardian for a deprived child to grandparents, relatives, or other persons with whom they have a close relationship.
Under the previous law, the juvenile court had limited options when attempting to give a permanent home to a child whose parents could no longer care for him or her. Even though the court could terminate the parents' rights, this was not always the best solution for the child, since permanently severing all ties between the parent and child means that ties with stable and healthy members of the family would also be severed.
Now, HB 1040 provides a way for courts to give a child permanency: if the court has found that the child should no longer live with the parent, the court can make a relative or a close family friend the child’s permanent guardian. In this way, the child will always have a home, but at the same time the door will be left open for maintaining or reestablishing relationships with biological parents, siblings, and other relatives.
Regardless of whether a deprivation matter is handled privately, it can be critical for the grandparent's or relative's attorney to act with sensitivity towards the birthparent. Ms. Stewart recognizes that the birthparent is likely to interact with the relative seeking custody as well as the child for many years to come. Demonizing the parent can have disastrous effects on the entire family system, and cooperative solutions, sometimes achieved through mediation, can benefit everyone.
Leslie Stewart has served dozens of children in deprivation matters in juvenile court. She handles these matters with sensitivity and an eye towards the long-term functioning of the family unit.