Georgia’s Equitable Caregiver Act provides parental rights for nonbiological caregivers, but an opportunity to move the law forward has been blown out like birthday candles.

Instead of deciding whether granting visitation rights to an adoptive mother’s former partner is constitutional under the law, the Georgia Supreme Court instead ruled that the challenge lapsed after the daughter at the center of the litigation turned 18.

“If resolving a case would be tantamount to deciding an abstract issue that does not arise from existing facts or rights, then that case is moot,” the statement reads. “When the remedy sought in a lawsuit no longer benefits the party seeking it, the case is moot and must be dismissed.”

“Grown Up Now”

In January, attorney Denise VanLanduyt of VanLanduyt Greer secured a win for her client Wendi Clifton in Decatur. At the time, DeKalb County Superior Court Judge Mark A. Scott granted Catherine Clifton visiting rights, the adopted daughter of her former partner Erin McAlister.

Represented by Decatur attorney Linda TF Day and Penelope W. Rumsey of Rumsey & Ramsey in Atlanta, McAlister appealed the decision. She argued the trial court erred in both declaring the law constitutional and finding that Clifton was eligible to seek visitation rights as equitable caregiver.

A detail of one of the judges’ chairs in the Supreme Court courtroom at the Nathan Deal Judicial Center. The chairs were reupholstered by inmates at Montgomery State Prison and embroidered by inmates at Hancock State Prison. (Photo: John Disney/ALM)

But McAlister’s appeal came too late, according to the High Court.

“Catherine is now an adult, having turned 18 prior to the filing of this appeal, and the parties agree that this fact has nullified McAlister’s challenge to the granting of visiting rights,” the statement said. “We conclude that the case is contentious and therefore reverse the orders of the trial court and refer the case to the trial court with instructions to dismiss the case.”

Two-thirds of the appellate body agreed with the verdict. Judge Charles Bethel did not attend, while the expert opinion found the disqualification nullified the contribution of Presiding Judge Michael P. Boggs and Judge Carla Wong McMillian.

Read the opinion

“Don’t ask in court”

Denise VanLanduyt, VanLanduyt Greer, Decatur. (Photo courtesy)

After planning to take the appeal to the Georgia Supreme Court in January, the dismissal disappointed Clifton’s attorney.

“We are disappointed in the decision to vacate and dismiss the entire underlying case, rather than just dismissing the custody and visitation appeal as moot based on the child’s age,” VanLanduyt said. “While we agree that custody and visitation for any child becomes contentious at age 18, we disagree with the Supreme Court’s apparent decision that the status of a non-biological parent in relation to their child as an equal caregiver in old age of 18 years ends. This is a question that has not yet been put before any court for a decision.”

Neither Day nor Rumsey responded to requests for comment on McAlister’s behalf Tuesday, but according to the High Court, appellate court lawyers argued that McAlister’s appeal should not be treated as contentious.

Claiming that Clifton’s status as an equal caregiver continued beyond Catherine’s 18th birthday, McAlister argued that this raised a question about Clifton’s existing parental rights. But without the findings of the court case or cited statutes to support McAlister’s argument, the appellate panel disagreed, instead finding that “the visit award has since been terminated by operation of law.”

The Appellate Body also disagreed with McAlister’s argument that public policy exceptions to the Mootness Doctrine could and should be applied to her appeal.

“Where a case contains a question which may be repeated but defies review, the question is not at issue because a decision in such a case would be based on existing facts or rights which, if not the immediate parties, would have an existing Class of affected sufferers,’” the statement said. “Contrary to McAlister’s argument, this case does not involve an existing group of people harmed by the law. Even if the question of the constitutionality of the Equal Treatment Act may well be raised again, there is no reason to assume that it will escape scrutiny.”

“Clear the Field”

The judges clarified that the ruling did not provide an opinion on the merits of McAlister’s challenge to the constitutionality of the Just Carer Statute, leaving the door open to future litigation.

“Overturning the verdict, rather than simply dismissing the appeal, has the effect of ‘clearing the field and preventing a judgment that is unappealable by virtue of non-appealability from giving rise to legal consequences,'” the statement reads. “Any time an individual seeks custody or visitation under the Appropriate Caregivers Act, the opposing party may challenge the constitutionality of the law and the court may consider it, as the court did in this case.”