Dias v. Boone

912 S.E.2d 547, 320 Ga. 785

• Court: Supreme Court of Georgia
• Decided: February 18, 2025
• Docket: S24A0887
• Status: Published

Opinion

320 Ga. 785 FINAL COPY

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

the legal parent that took place prior to the effective date of the

statute. And so we reverse.

2 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

the action” to be adjudicated as an equitable caregiver. See OCGA §

19-7-3.1 (b), (d). In order to establish standing, the individual

3 seeking equitable caregiver status must establish by clear and

convincing evidence each of five statutory prerequisites, showing

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

for that criterion to be satisfied. The statute provides that “[t]he

court may enter an order as appropriate to establish parental rights

4 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

does not sufficiently protect a parent’s fundamental right under the

federal and state constitutions to the care, custody, and control of

5 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 as-

applied. 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.

On August 10, 2023, the trial court issued a lengthy order

granting Boone’s request for standing as an equitable caregiver.

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 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

responsibilities as contemplated by Georgia law.” The trial court

provided for some written communication between Boone and M. D.

7 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.

On remand in January 2024, the trial court issued a new order.

The court’s new order reiterated that Boone “is granted equitable

8 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

that Dias did not file an application for discretionary appeal.

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 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) (petition for certiorari

granted, judgment vacated, and case remanded to Court of Appeals

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 for reconsideration, Case No. 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

11 application process in order to appeal immediately. See Grogan v.

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

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 premise that any case filed under the Equitable Caregiver Statute

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

13 canon of noscitur a sociis, the phrase “other domestic relations

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 774 (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

14 and a Survey of the Canons, 76 Mercer L. Rev. 1, 38-39 (2024).

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

15 nothing like an order “granting or refusing a divorce or temporary

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 Statute is, per

the language of the statute, “to establish parental rights and

responsibilities for” the equitable caregiver “including, but not

16 limited to, custody or visitation.” OCGA § 19-7-3.1 (g).6 And the

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

the Interest of 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

6 As we have explained, a “change in visitation amounts to a change in

custody in legal contemplation since visitation rights (sometimes called 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 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 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

18 to appeal “judgments or orders in child custody cases.” See id. Based

on the assumption that OCGA § 5-6-35 (a) (2) generally required

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

19 custody determination, on the theory that if it were, no application

would be required, per OCGA § 5-6-34 (a) (11). See Hartman, 371

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

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

20 Court of Appeals thus was wrong in Hartman to follow the 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

about whether appeals from orders or judgments entered in such a case must come by discretionary application. 21 not decide),9 an order ruling on a petition for equitable caregiver

status is not such an order; petitions for legitimation are governed

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

9 Some of us are doubtful that Numanovic was rightly decided.

22 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

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

23 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

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

24 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. 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

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 constitution. 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 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

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

26 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

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 non-

parent 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

27 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

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, pp. 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

28 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

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,

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 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.

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

30 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

“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 and 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

31 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

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

32 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,

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

33 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 (75 SE 477)

(1912); Janes v. Cleghorn, 54 Ga. 9, 14 (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

34 “knowing”); see also In the Matter of the 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 made knowingly, intelligently, and voluntarily[.]”). 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.”), overruled on other grounds by Collier v.

State, 307 Ga. 363, 368-369 (1), 376-377 (3) (834 SE2d 769) (2019).

Here, at the time that Dias engaged in the conduct at issue, she

35 could not have known that the possible consequences of that conduct

included any effect on her parental rights. Dias stipulated that she

“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

36 “fostering or supporting” a relationship between Boone and M. D.

would have concluded that no such result would occur. She would

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;

Miller, 76 Ga. at 487 (2); 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

37 children).12

(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

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 remember I’m the legal parent and you’re not if she got mad. Of course it would upset me.” 38 constitutional questions when a case can be resolved without

passing on such issues.” State v. Randall, 318 Ga. 79, 81 (2) (897

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

39 it does not.13

“The Due Process Clause of the Fourteenth Amendment to the

United States 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) (citations

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

13 And we cannot completely avoid the constitutional issues implicated

here by addressing the (at least superficially) non-constitutional sufficiency-of- the-evidence argument that Dias does raise. Fully addressing Dias’s argument that the evidence of harm presented by Boone was insufficient would require 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 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

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) (citation 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,

41 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

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. (citation and punctuation omitted). But here, applying the

42 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

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

43 is implicated, we cannot agree.14 We have said in allowing

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

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. 44 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

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 (citation and punctuation omitted). 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

15 In Smith, we noted that an amendment to the state’s relative- visitation statute allowed a grandparent-visitation petition to be filed where

45 is never a retroactive application of a statute to ascribe to the

conduct of a parent 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

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. 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

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 to the effective date of the

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 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. 47 statute violates that particular right. See Stanford, 312 Ga. at 710.18

Here, 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

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 599-600 (V). 48 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

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.

49 Judgment reversed. All the Justices concur.

Decided February 18, 2025.

OCGA § 19-7-3.1; constitutional question. Muscogee Superior

Court. Before Judge Mullins.

Elizabeth S. Pitts, for appellant.

VanLanduyt Law, Denise D. VanLanduyt; Hall Booth Smith,

Donna S. Hix, for appellee.

Sbaity Law, Hannah E. Sbaity; David S. DeLugas; Robin F.

Clark, amici curiae.