Jessica Reece Fagan, partner, Hedgepeth Heredia Family Law. (Courtesy photo)

The HBO series “Big Little Lies” follows the lives of five mothers in Monterey, California, who (spoiler alert) are brought together after the mysterious death of Perry Wright. In the just-concluded second season, his widow (Celeste, played by Nicole Kidman) faces a custody challenge when Perry’s mother (Mary Louise, played by Meryl Streep) hires a lawyer and questions whether Celeste is fit to raise her twin sons alone.

Following the season finale, several clients contacted us asking:

• “Can what Mary Louise did to Celeste really happen?”
• “Do grandparents really have the right to seek custody of my children over my objection?”

 The short answer is … yes.

While there is a general presumption that children should be raised by their parents, that presumption is rebuttable. In other words, courts generally assume that parents should have custody of their children, but a third party can come forward to contest that assumption and try to prove otherwise in court under certain specific circumstances.

It’s not an easy burden to surmount a parent’s rights to a child, but under specific facts and circumstances the law does allow grandparents and other third parties to seek custodial rights of a child, even over an objection by that child’s parent.

In Georgia, there are three separate statutes—one that just went into effect this July—that allow certain third parties to seek custodial rights of children.

Third-Party Custody

The first statute is O.C.G.A. § 19-7-1, which provides that parents can lose their parental power if grandparents—or other types of listed relatives—demonstrate to the court that primary custody to a third party would be in the child’s best interest. This code section allows for an action, regardless of whether the parents are still together.

The law interpreting this statute sets out that a third party has a higher burden to meet than when custody is at issue between parents. The third party must show that substantial harm will arise to the child if the third party is not granted custody. If after hearing and taking into consideration all the circumstances of the case the court agrees the custodial change is in the best interest of the child, a court can exercise its discretion and award custody to a third party.

Grandparent Visitation

The second statute is O.C.G.A. § 19-7-3, which allows grandparents to file an action or seek to intervene in an existing custody action involving a child and seek visitation rights. In order to proceed pursuant to this statute, the parents must be separated.

There is no presumption that any grandparent has the right to visit with a grandchild, but a court may grant reasonable visitation rights if the court finds the health or welfare of a child would be harmed unless such visitation is granted. In other words, the court must determine that the best interests of the child would be served by such grandparent visitation.

Equitable Caregiver

The third statute, which was just signed into law by Georgia Governor Brian Kemp, is O.C.G.A. § 19-7-3.1 and is, by far, the broadest statute authorizing custody rights to a third party. This new law allows a wide variety of persons to seek custody of a child, basing that person’s ability to have standing and seek custody on his or her involvement in the child’s life and not on biological or familial ties.

This means stepparents, friends and even distant relatives who have been substantially involved in the upbringing of a child can now petition a court for child custody or visitation. In order to establish the right to seek custody as an equitable caregiver, a court must find by clear and convincing evidence that the third party meets a set of elements demonstrating that he or she has engaged in consistent caretaking of the child.

This statute does not disenfranchise a parent’s own custodial rights, which means, even if a third party seeks custody, both parents could also still seek custodial and visitation rights from the court.

So, yes, while Mary Louise did have the right to challenge Celeste’s primary custody in the court, ultimately it fell to the judge to determine what would be in the twins’ best interests. And in the case of “Big Little Lies” at least, we think the judge got it right.

Jessica Reece Fagan is a partner at Hedgepeth Heredia Family Law in Atlanta.