In the Supreme Court of Georgia

Decided: December 14, 2021

S22A0144. MCALISTER V. CLIFTON.

 ELLINGTON, Justice.

Erin McAlister appeals from trial court orders awarding

Wendi Clifton, McAlister’s former domestic partner, visitation 

rights to McAlister’s adopted daughter, Catherine, pursuant to the 

equitable caregiver statute, OCGA § 19-7-3.1.1 McAlister contends 

the trial court erred in declaring the statute “constitutional, both 

facially and as applied to [Clifton],” as well as finding that Clifton 

had standing to seek visitation rights as Catherine’s equitable 

caregiver. However, Catherine is now an adult, having turned 18

years old prior to the docketing of this appeal, and the parties agree 

that this fact rendered moot McAlister’s challenge to the award of 

 1 Clifton did not formally adopt Catherine and she does not contend that 

she is Catherine’s legal parent. 
2

visitation rights.2 We conclude that the case is moot, and we 

therefore vacate the trial court’s orders and remand the case to the 

trial court with direction that the case be dismissed. 

The record shows that, on January 25, 2021, the trial court 

entered an order denying McAlister’s motion to dismiss Clifton’s 

petition for visitation with Catherine, rejecting McAlister’s 

challenge to the constitutionality of OCGA § 19-7-3.1.3 Also on 

 2 McAlister moved the trial court to set aside a portion of the final order

granting Clifton visitation after Catherine’s eighteenth birthday, citing 

Francis-Rolle v. Harvey, 309 Ga. App. 491, 492 (1) (710 SE2d 659) (2011).

Clifton conceded that her right to visitation terminated by operation of law 

when Catherine reached the age of majority, and the trial court granted the 

motion. Thus, as discussed below, this portion of the final order is already a 

nullity.

3 The equitable caregiver statute provides that a court may adjudicate 

an individual to be an equitable caregiver if, among other things, the individual 

shows by clear and convincing evidence 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 
3

January 25, the trial court issued its “Final Order on Equitable 

Caregiver,” in which it found that Clifton had satisfied the statute’s

criteria for standing as an equitable caregiver, and it awarded her 

“parenting time” with Catherine. The orders did not grant Clifton 

any rights beyond visitation. McAlister appealed to the Court of 

Appeals, which transferred the case to this Court.4 Thereafter, we 

directed the parties to file supplemental briefs regarding whether 

this appeal is moot. See In the Interest of M. F., 305 Ga. 820 (828 

SE2d 350) (2019) (“Mootness is an issue of jurisdiction and thus 

must be determined before a court addresses the merits of a claim.”

(citation and punctuation omitted)); Byrd v. Goodman, 192 Ga. 466, 

466 (15 SE2d 619) (1941) (“[I]t is the duty of this court to raise the 

question of its jurisdiction in all cases in which there may be any 

doubt as to the existence of such jurisdiction.” (citation and 

 

between such individual and the child is in the best interest of the 

child.

OCGA § 19-7-3.1 (d).

4 The Supreme Court of Georgia has exclusive jurisdiction over cases 

challenging the constitutionality of a statute. See Ga. Const. of 1983, Art. VI, 

Sec VI, Par. II (1).
4

punctuation omitted)).

Clifton contends that this appeal is moot because McAlister’s 

daughter is now legally an adult and no longer in the custody or 

control of her parent. We agree. 

When the resolution of a case would be tantamount to the 

determination of an abstract question not arising upon 

existing facts or rights, then that case is moot. When the 

remedy sought in litigation no longer benefits the party 

seeking it, the case is moot and must be dismissed.

(Citations and punctuation omitted.) M. F., 305 Ga. at 820. In a case 

factually similar to this case, the Court of Appeals explained why it 

was required to dismiss as moot an appeal from a custody order: 

The child was 17 years old when the [trial] court granted 

custody to Harvey and turned 18 years of age shortly after 

the appeal was docketed. Because at 18 years the child 

has reached the age of legal majority and is no longer 

subject to the custody order, this issue is moot. OCGA § 

39-1-1 (a) (age of legal majority is 18 years); OCGA § 19-

7-1 (a) (at age 18 child no longer in the custody or control 

of either parent). To the extent Francis-Rolle claims the 

custody award was error, the appeal is dismissed.

Francis-Rolle v. Harvey, 309 Ga. App. 491, 492 (1) (710 SE2d 659) 
5

(2011).5

McAlister argues that her appeal is not moot because Clifton’s 

“status” as an equitable caregiver continues beyond Catherine’s

eighteenth birthday, which presents a question concerning Clifton’s 

existing parental rights. McAlister has cited no law in support of 

this argument, and the trial court made no finding in either order 

that Clifton had continuing parental rights as an equitable 

caregiver. Rather, in its final order, the court found that Clifton had 

“standing” to seek “parenting time” as an equitable caregiver

because she had satisfied the statutory criteria for such an award of 

visitation. The court did not award Clifton any rights beyond 

visitation, and the visitation award has since terminated by 

operation of law. See Francis-Rolle, 309 Ga. App. at 492 (1). Hence, 

the portion of the trial court’s final order awarding visitation is 

already a nullity. McAlister also argues that Clifton is using the fact 

 5 As explained below, the better practice would have been for the Court 

of Appeals to vacate the trial court’s order rather than simply dismissing the 

appeal from the order. 
6

that she was previously awarded visitation as an equitable caregiver 

to gain an advantage in a guardianship matter involving her 

daughter in the Probate Court of DeKalb County.6 However, 

McAlister has not shown that the trial court’s final order granting 

Clifton parenting time with Catherine would have any collateral 

consequence in the pending guardianship matter.7 See In the 

Interest of I. S., 278 Ga. 859, 862 (607 SE2d 546) (2005) (a matter 

does not become moot if adverse collateral consequences continue to 

plague the affected party).

McAlister also argues that this Court has recognized certain

public policy “exceptions” to the doctrine of mootness and that we 

should apply those exceptions to hold that her appeal is not moot. 

To be clear, although we have sometimes used the word, there are 

no true “exceptions” to the mootness doctrine, which is a

 6 Although Catherine is now an adult, McAlister contends that her 

daughter is in need of a guardian to protect her health and safety. 

7 Who should act as the guardian of an incapacitated adult is for the 

probate court to determine. See OCGA § 29-4-1 et seq. The order of preference 

for selecting a guardian is set forth in OCGA § 29-4-3 (b). Preference is given 

to a “parent” over a “friend, relative, or other individual,” although the probate 

court may deviate from the order of preference for good cause. See OCGA § 29-

5-3 (a). “Equitable caregiver” is not listed in OCGA § 29-4-3 (b).
7

jurisdictional doctrine rooted in the common law and the separation 

of powers; rather, “we have recognized circumstances where cases 

that may appear to be moot are nonetheless viable due to the 

particular nature of the litigated issue.” M. F., 305 Ga. at 821. As we 

have explained, “a case is moot when its resolution would amount to 

the determination of an abstract question not arising upon existing 

facts or rights.” (Citation and punctuation omitted.) Collins v. 

Lombard Corp., 270 Ga. 120, 121 (1) (508 SE2d 653) (1998). So, 

when a case contains an issue that is capable of repetition yet evades 

review, the issue is not moot “because a decision in such a case would 

be based on existing facts or rights which affect, if not the immediate 

parties, an existing class of sufferers.” (Citation and punctuation 

omitted.) Id. at 121-122 (1). Contrary to McAlister’s argument, this 

case is not one that affects an existing class of persons suffering 

harm as a result of the statute. While the question of the 

constitutionality of the equitable caregiver statute may well be 

raised again, there is no reason to believe that it will evade review. 

Any time a person seeks custody or visitation pursuant to the 
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equitable caregiver statute, the opposing party may challenge the 

constitutionality of the statute and the court may consider it, just as 

the trial court did in this case. See id. at 122 (2) (the underlying issue 

of the constitutionality of a statute imposing a tax could be raised 

by other parties in a suit for a refund).

McAlister also argues that this case presents an issue of such 

significance that the public interest demands that we address the 

constitutionality of the statute immediately. She relies on Hopkins 

v. Hamby Corp., 273 Ga. 19 (538 SE2d 37) (2000), in which we noted 

that

[o]ther states have adopted a rule that permits them to 

decide an appeal in a moot case where the case contains 

an issue of significant public concern or an issue that 

might avert future litigation. The courts find justification 

for deciding issues raised in moot cases when (1) the 

public interest will be hurt if the question is not 

immediately decided; (2) the matter involved is likely to 

recur frequently; (3) it involves a duty of government or 

government’s relationship with its citizens; and (4) the 

same difficulty that prevented the appeal from being 

heard in time is likely to again prevent a decision.

(Footnotes omitted.) Id. Assuming Hopkins is authority for a 

“significant public concern” rationale that could support the 
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continuing viability of McAlister’s constitutional challenge to the 

equitable caregiver statute,8 McAlister has failed to show that the 

challenge presented satisfies the criteria set forth in Hopkins –

especially when trial courts are able to address the constitutionality 

of the statute when a petition is filed pursuant to it. See id. 

Finally, 

[w]hen a civil case becomes moot pending appellate 

review due to happenstance – circumstances not 

attributable to the parties, like the mere passage of time 

– rather than by settlement of the dispute or voluntary 

cessation of the challenged conduct by the prevailing 

party below, the better practice is to vacate the judgment 

under review and remand with direction that the case be 

dismissed by the trial court. 

 8 In Collins, we rejected the creation of ad hoc public policy rationales for 

rendering legal issues viable that would ordinarily be considered moot as 

“unnecessary and undesirable in that they foster uncertainty in the law and 

inappropriately serve to expand the jurisdiction of the court applying such 

exceptions[.]” Collins, 270 Ga. at 122-123 (3). And this Court has yet to 

expressly endorse the public policy rationale alone as a basis for considering 

an otherwise moot issue. In Perdue v. Baker, 277 Ga. 1 (586 SE2d 606) (2003), 

for example, although we noted that the case was of “significant public 

concern,” we determined that the case was not moot for a number of reasons, 

including that the issue presented was one capable of repetition yet had evaded 

review. See id. at 3. See also Ricks v. State, 301 Ga. 171, 187 (4) (b) n.16 (800 

SE2d 307) (2017) (Appellant’s “core claim is a matter capable of repetition yet 

evading review,” though it was also a matter of significant public concern. 

(citations and punctuation omitted)).
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(Citations omitted.) Babies Right Start, Inc. v. Georgia Dep’t of Pub. 

Health, 293 Ga. 553, 557 (2) (d) (748 SE2d 404) (2013) (vacating a 

judgment disqualifying the appellant from participating in a welfare 

program when the disqualification expired after a year, which 

mooted the appeal through happenstance). Vacating the judgment, 

instead of simply dismissing the appeal, has the effect “of clearing 

the field and preventing a judgment, unreviewable because of 

mootness, from spawning any legal consequences.” (Citations and 

punctuation omitted.) Id. Accordingly, we vacate the trial court’s 

orders as moot and remand the case to the trial court with direction 

to dismiss the case. We express no opinion on the merits of 

McAlister’s challenge to the constitutionality of the equitable 

caregiver statute.

Judgment vacated, and case remanded with direction. All the 

Justices concur, except Boggs, P. J., and McMillian, J., disqualified.

Bethel, J., not participating.