1. Leslie Stewart
Attorney-at-Law
Attorney Leslie Stewart
Decatur, GA 30030
ph: 678.592.8592
leslie.stewart.attorney@gmail.com
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Grandparent & Relative Custody
 What is considered 'deprivation'?
 Guardianship
 "Care of a Grandchild Act"
When circumstances like alcohol and drug abuse ormental health issues make a child's parents unfit, when a child is
being deprived ofshelter, supervision or the necessities oflife or when abuse and neglect are factors, it is necessary for
caring, stable adults to intervene.
Grandparents, relatives and close family friends can be awardedcustody rights to children in certain
circumstances. This is certainly easier and simplerifthe parent consents to relinquishing custody, but
transferring custody can also be accomplishedeven ifthe parent opposes the idea, particularly when the
parent is impaired.
Many children in Georgia are being raised by their grandparents, great-grandparents, orother relatives.
According to the 2000 census figures,approximately 8%of children nationwide are being raised by a
grandparentor grandparents.
When Georgia courts considergranting child custody to grandparents or relatives,they consider the "best interests ofthe
child." The best interests test consists offactors such as the physical and emotional health ofthe child and his or her
safety and welfare. Courts also can consider the wishes ofthe 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 grandparentpower-of-attorney will provide the
easiest and most cost-effective option.

2. 2) If the parent agreesto relinquish custody and you are nota grandparent,you may want to considergoing to probate
court and obtaining a guardianship.
3) If the parent cannot be located, a probatecourtguardianship orjuvenilecourt 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 evidenceof
maltreatment or neglect, there are several options available to you:
 Notifying DFCS so that the child will be taken into DFCS custody and later requesting to be considered as a
placement resource.
 Bringing a private deprivation action in juvenile court.
 Bringing a guardianship action in probate or juvenile court.
Each option has risks and benefits. For instance, ifthere is a need to place the child on your family's health insurance
policy, a guardianship will be preferableto a custody order, whichmost private insurers do not consider sufficient for
coverage. On the other hand, ifyou obtain temporary custody from a juvenile court, the child will generally be eligible for
Medicaid coverage.
When children are placed in the custody ofDFCS as a result ofyour 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 ofthe family problem, you may be prohibited from even communicating with or
visiting the child. This process can sometimes take months.
Because ofthe unpredictability ofthe caregiver's status when DFCS is involved in a case, some
relatives opt to handlethesesituations as private family matters. In those circumstances, while it is
still possible for DFCS to becomeinvolved,retaining an attorney who can handle the case
appropriately becomes moreimportant.
A terrific legal resource for low income families caring for relativechildren 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
 What is Considered Deprivation?
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 ofschool.
The Georgia code lists four circumstances in which a child can be considered deprived.
If the child is:
o without proper parental careor control, subsistence, education as required by law, or other careor control
necessary for the child's physical, mental, or emotional health or morals;
o has been placed for care oradoption in violation ofthe law;
o has been abandoned by his or her parents or other legal custodian;or

3. o is without a parent, guardian, or custodian.
O.C.G.A. 15-11-2(8)(A-D).
A deprivation action is usually filed by the Department ofFamily and Children Services (DFCS) upon receiving a
notice, report, orreferral from someone claiming that a child has been abused. However,the Georgia Code allows
deprivation actions to be filed by any private person whohas knowledge ofthe
conditions giving rise to the deprivation.
The petition alleging deprivation may be made by any person who has knowledge ofthe
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.
1) Neglect
Neglect is unacceptableeven ifit arises as the result ofpoverty ormental illness. Vermilyea v. Dept. ofHuman
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 oftheir children. The
condition ofthe subjects ofthe petition in this case shocked the conscience ofthe court. "Even the poorest ofthe
poor can be expected to maintain reasonably clean and hygienic living conditions."Id. at 7 50.
In neglect cases, clear,specific,tangibleevidence (e.g., photographs, eyewitnesses giving vivid descriptions based
on direct, continuous observation) is necessary for a positiveresolution.
One important note: Neglect is not a comparative condition. A child canotbe declared "deprived"simply because
the child might be considered "better off"in a different environment.
2) Physical Abuse
Physical abuseis 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 degreeofinjury which is legally ac ceptable. Some cases obviously qualify
as physical abuse, and others are more subtle. In Georgia, physical forms ofdiscipline 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 theirchildren 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 difficultto prove. Not only specific, first-hand
evidence is critical, but experttestimony based on evaluation ofthe child and his/her parents may be necessary.
4) Unstable Lifestyle
Some emotional abuse cases are based on the idea that frequent moves from hometo home can prevent the
successful formation ofa parent-child relationship. A child can thus be deprived ofa sound environment built
upon love and nurture.There can be a substantial dangerthat the child will suffer emotional as well as phy sical,
mental, and moral harm. Elrod v. Dept. ofFamily and Children Services,136 Ga. App. 251 (1975). Particular care
must be exercised in deciding whetheran emotional abusecaseshould be filed to avoidmaking the child's
environment even more hostile.
Georgia courts recognize that children need stable and permanent homes.

4. 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 ofthe child by bypassing a
more stringent standard ofproofnecessary to modify a custody award.
Generally, privateindividuals who file deprivation actions must retain their own attorneys. DFCS is
representedby Special Assistant Attorney Generals (SA AGs);the children are entitledto an attorney
paid by the state to represent them;and ifthe parents in a deprivation action cannot afford legal
representation, court-appointed attorneys areassigned.
Interestingly, while the judge is authorized to appoint legal counsel to representthe petitioner,O.C.G.A. 15 -11-
41(c), this rarely occurs. It is highly recommended that private petitioners obtain legal counsel. Ifthe 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 tightdeadlines.
Attorney Stewart can help you evaluate the strength ofan abuse or neglect case and can assist you in filing a
petition for privatedeprivation.
 Guardianship
If you havea 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 treatmentfor the child or otherwise control the childwithout first becoming the
legally-qualified Temporary Guardian ofa Minor Child through the Probate Court ofyour county ofresidence.
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 ofthe child often becomes apparent.
A guardianship is a legal relationship wherein a courtappoints a person (a guardian) to make certain decisions
for another person (award) 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 relativewho can carefor the children until the parents can do
so again. In these situations, a voluntary Temporary Guardianship ofa Minor can be useful to
all the parties so that the Temporary Guardian can enroll the child in school or summercamp
and authorize medical treatment.
Guardianships generally require that the parents temporarily giveup 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 ortemporary guardians ofthe persons ofminor childre n
even ifthe absence ofthe parent's consent in certain circumstances.
If a parent objects to a proposedguardianship, the courtwill automatically dismiss the guardianship unless
o the objecting parentdoes not havelegal custody ofthe child (which can occurifthe parents were not
married at the birth ofthe child;ifthe father has not legitimated;OR
o if the parents are divorced and only one parent has custody ofthe child).
If an objection is filed, the probate judge will transferthe case to the juvenilecourt, which will giveboth 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 insurethat yourhome is an appropriate place for the child. Therefore, the petitioner(s) and
anyone over 18 years old who is living in the same household wherethe child will be living must fill out and sign a
consent form allowing the ProbateCourt to receive information concerning their criminal records.

5. Attorney Stewart can help foster parents or extended family members apply for and obtain legal guardianshipover
minor children. This involves gathering all necessary birth and medical papers, as applicable, and completing the
forms requiredfor establishing justifiable causeto obtain temporary or permanent legal guardianship.
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 "Care of a Grandchild Act"
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 orinvolvement ofthe court system. The General Assembly recognized that an increasing
number ofrelatives in Georgia, including grandparents and great-grandparents, have been
providing careto 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 ofa pen, a parent ofa minor child in Georgia may now delegate to any grandparent
residing in this state caregiving authority regarding the minor childwhen hardshipprevents the
parent from caring for the child.
Hardships may include, but are not limited to:
o A parent being unable to providecare due to the death ofthe other parent;
o A serious illness or terminal illness ofa parent;
o The physical or mental condition ofthe parent or the child suchthat propercareand supervision ofthe
child cannot be provided by the parent;
o The incarceration ofa parent;
o The loss or uninhabitability ofthe child´s homeas the result ofa natural disaster;or
o A period ofactive military duty ofa parent exceeding 24 months.
It must be noted that these powers ofattorney 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 createthis special power ofattorney. In the event
that a power ofattorney is rejected by a school system, it is rec ommended that the appeal process be handled by
an attorney.
Contact Us
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 phoneconsultations are free.
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