GA Code § 19-7-1 (2021)
2021 Georgia Code|Title 19 - Domestic Relations|Chapter 7 - Parent and Child Relationship Generally|Article 1 - General Provisions|§ 19-7-1. In Whom Parental Power Lies; How Such Power Lost; Recovery for Homicide of Child or Unborn Child

  Until a child reaches the age of 18 or becomes emancipated, the child shall remain under the control of his or her parents, who are entitled to the child's services and the proceeds of the child's labor. In the event that a court has awarded custody of the child to one parent, only the parent who has custody of the child is entitled to the child's services and the proceeds of the child's labor.   Parental power shall be lost by:   Voluntary contract releasing the right to a third person;   Consent to the adoption of the child by a third person;   Failure to provide necessaries for the child or abandonment of the child;   Consent to the child's receiving the proceeds of his own labor, which consent shall be revocable at any time;   Consent to the marriage of the child, who thus assumes inconsistent responsibilities;   Cruel treatment of the child;   A superior court order terminating parental rights in an adoption proceeding in accordance with Chapter 8 of this title; or   A superior court order terminating parental rights of the legal father or the biological father who is not the legal father of the child in a petition for legitimation, a petition to establish paternity, a divorce proceeding, or a custody proceeding pursuant to this chapter or Chapter 5, 8, or 9 of this title, provided that such termination is in the best interest of such child; and provided, further, that this paragraph shall not apply to such termination when a child has been adopted or is conceived by artificial insemination as set forth in Code Section 19-7-21 or when an embryo is adopted as set forth in Article 2 of Chapter 8 of this title.       In every case of the homicide of a child, minor or sui juris, there shall be some party entitled to recover the full value of the life of the child, either as provided in this Code section or as provided in Chapter 4 of Title 51.For the homicide of an unborn child, the right to recover for the full value of the life of such child shall begin at the point at which a detectable human heartbeat, as such term is defined in Code Section 1-2-1, is present.   If the deceased child does not leave a spouse or child, the right of recovery shall be in the parent or parents, if any, given such a right by this paragraph as follows:   If the parents are living together and not divorced, the right shall be in the parents jointly;   If either parent is deceased, the right shall be in the surviving parent; or   If both parents are living but are divorced, separated, or living apart, the right shall be in both parents. However, if the parents are divorced, separated, or living apart and one parent refuses to proceed or cannot be located to proceed to recover for the wrongful death of a child, the other parent shall have the right to contract for representation on behalf of both parents, thereby binding both parents, and the right to proceed on behalf of both parents to recover for the homicide of the child with any ultimate recovery to be shared by the parents as provided in this subsection. Unless a motion is filed as provided in paragraph (6) of this subsection, such a judgment shall be divided equally between the parents by the judgment; and the share of an absent parent shall be held for such time, on such terms, and with such direction for payment if the absent parent is not found as the judgment directs. Payment of a judgment awarded to the parent or parents having the cause of action under this subparagraph or the execution of a release by a parent or parents having a cause of action under this subparagraph shall constitute a full and complete discharge of the judgment debtor or releasee. If, after two years from the date of any recovery, the share of an absent parent has not been paid to the absent parent, the other parent can petition the court for the funds, and the recovery, under appropriate court order, shall be paid over to the parent who initiated the recovery.     The intent of this subsection is to provide a right of recovery in every case of the homicide of a child who does not leave a spouse or child. If, in any case, there is no right of action in a parent or parents under the above rules, the right of recovery shall be determined by Code Section 51-4-5.   In this subsection the terms "homicide" and "full value of the life" shall have the meaning given them in Chapter 4 of Title 51.   In actions for recovery, the fact that the child was born out of wedlock shall be no bar to recovery.   For cases in which the parents of a deceased child are divorced, separated, or living apart, a motion may be filed by either parent prior to trial requesting the judge to apportion fairly any judgment amounts awarded in the case. Where such a motion is filed, a judgment shall not be automatically divided. A postjudgment hearing shall be conducted by the judge at which each parent shall have the opportunity to be heard and to produce evidence regarding that parent's relationship with the deceased child. The judge shall fairly determine the percentage of the judgment to be awarded to each parent. In making such a determination, the judge shall consider each parent's relationship with the deceased child, including permanent custody, control, and support, as well as any other factors found to be pertinent. The judge's decision shall not be disturbed absent an abuse of discretion.      (b.1)Notwithstanding subsections (a) and (b) of this Code section or any other law to the contrary, in any action involving the custody of a child between the parents or either parent and a third party limited to grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent, parental power may be lost by the parent, parents, or any other person if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.   (Orig. Code 1863, § 1744; Code 1868, § 1784; Code 1873, § 1793; Code 1882, § 1793; Civil Code 1895, § 2502; Civil Code 1910, § 3021; Code 1933, § 74-108; Ga. L. 1979, p. 466, § 43; Ga. L. 1980, p. 1154, § 1; Ga. L. 1987, p. 619, § 1; Ga. L. 1988, p. 1720, § 3; Ga. L. 1991, p. 94, § 19; Ga. L. 1996, p. 412, § 1; Ga. L. 2000, p. 1509, § 1; Ga. L. 2006, p. 141, § 4/HB 847; Ga. L. 2010, p. 878, § 19/HB 1387; Ga. L. 2013, p. 294, § 4-22/HB 242; Ga. L. 2014, p. 780, § 1-47/SB 364; Ga. L. 2019, p. 711, § 6/HB 481.)    The 2019 amendment,  effective January 1, 2020, added the second sentence in paragraph (c)(1).   Cross references.   - Grounds for order by juvenile court terminating parental rights, § 15-11-81.    Criminal penalty for cruelty to children, § 16-5-70.    Parental power over illegitimate child, § 19-7-25.    Parents as natural guardians of minor child, § 29-2-3.    Age of majority, § 39-1-1.   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1996, a comma was inserted following "sibling" in the first sentence of subsection (b.1).   Editor's notes.   - Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."   Ga. L. 2019, p. 711, § 1/HB 481, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Living Infants Fairness and Equality (LIFE) Act.'"   Ga. L. 2019, p. 711, § 2/HB 481, not codified by the General Assembly, provides: "The General Assembly of Georgia makes the following findings:   "(1) In the founding of the United States of America, the State of Georgia and the several states affirmed that: 'We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness - that to secure these Rights, Governments are instituted among men;'   "(2) To protect the fundamental rights of all persons, and specifically to protect the fundamental rights of particular classes of persons who had not previously been recognized under law, the 14th Amendment to the United States Constitution was ratified, providing that, 'nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws';   "(3) Modern medical science, not available decades ago, demonstrates that unborn children are a class of living, distinct persons and more expansive state recognition of unborn children as persons did not exist when Planned Parenthood v. Casey (1992) and Roe v. Wade (1973) established abortion related precedents;   "(4) The State of Georgia, applying reasoned judgment to the full body of modern medical science, recognizes the benefits of providing full legal recognition to an unborn child above the minimum requirements of federal law;   "(5) Article I, Section I, Paragraphs I and II of the Constitution of the State of Georgia affirm that '[n]o person shall be deprived of life, liberty, or property except by due process of law'; and that '[p]rotection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws'; and   "(6) It shall be the policy of the State of Georgia to recognize unborn children as natural persons."   Ga. L. 2019, p. 711, § 13/HB 481, not codified by the General Assembly, provides: "Any citizen of this state shall have standing and the right to intervene and defend in any action challenging the constitutionality of any portion of this Act."   Ga. L. 2019, p. 711, § 14/HB 481, not codified by the General Assembly, provides: "All provisions of this Act shall be severable in accordance with Code Section 1-1-3."   Law reviews.   - For article, "Custody Disputes and the Proposed Model Act," see 2 Ga. L. Rev. 162 (1968). For article, "Trusts for Dependents: Effect of Georgia's Support Obligation on Federal Income Taxation," see 8 Ga. St. B.J. 323 (1972). For article, "The Child as a Party in Interest in Custody Proceedings," see 10 Ga. St. B.J. 577 (1974). For article, "The Origins of the Doctrine of Parens Patriae," see 27 Emory L.J. 195 (1978). For article criticizing parental rights doctrine and advocating best interests of child doctrine in parent-third party custody disputes, see 27 Emory L.J. 209 (1978). For article, "Toward an Economic Theory of the Measurement of Damages in a Wrongful Death Action," see 34 Emory L.J. 295 (1985). For article, "Georgia Inheritance Rights of Children Born Out of Wedlock," see 23 Ga. St. B.J. 28 (1986). For annual survey of recent developments, see 38 Mercer L. Rev. 473 (1986). For annual survey on law of domestic relations, see 42 Mercer L. Rev. 201 (1990). For annual survey article discussing developments in domestic relations law, see 52 Mercer L. Rev. 213 (2000). For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 79 (2006). For survey article on domestic relations law, see 59 Mercer L. Rev. 139 (2007). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007). For annual survey on domestic relations law, see 64 Mercer L. Rev. 121 (2012). For annual survey on domestic relations, see 65 Mercer L. Rev. 107 (2013). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 155 (2019). For review of 1996 domestic relations legislation, see 13 Ga. St. U.L. Rev. 155 (1996). For note, "Not Just For Kids: Why Georgia's Statutory Disinheritance of Deadbeat Parents Should Extend to Intestate Adults," see 43 Ga. L. Rev. 867 (2009). For comment on Wright v. Wright, 85 Ga. App. 721, 70 S.E.2d 152 (1952), see 15 Ga. B.J. 83 (1952). For comment on Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955), holding that plaintiff who alleged that injuries she received while one and one-half months pregnant, later caused the death of the unborn child had stated a cause of action and could maintain a suit for the wrongful death of the child, see 18 Ga. B.J. 98 (1955). For comment on Buttrum v. Buttrum, 98 Ga. App. 226, 105 S.E.2d 510 (1958), holding that an unemancipated minor child may maintain an action in tort against a parent for personal injuries provided that it is a willful and malicious act so cruel as to constitute forfeiture of parental authority, see 21 Ga. B.J. 559 (1959). For comment on consideration of loss of companionship in determining damages for death of a child, in light of Lockhart v. Besel, 426 P.2d 605 (Wash. 1967), see 19 Mercer L. Rev. 266 (1968). For comment discussing trend toward allowance of a wrongful death action for death of an unborn child, see 1 Ga. St. B.J. 508 (1968). For comment on Bodrey v. Cape, 120 Ga. App. 859, 172 S.E.2d 643 (1969), see 7 Ga. St. B.J. 256 (1970). For comment on Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971), refusing to apply doctrine of parental immunity to suit brought by minor against father's estate, see 8 Ga. St. B.J. 544 (1972). For comment discussing doctrine of substituted judgment and constitutional underpinnings of a qualified right to refuse medical treatment asserted for an incompetent, in light of Superintendent of Belcherton State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977), see 27 Emory L.J. 425 (1978). For comment on "Grandparents' Visitation Rights in Georgia," see 29 Emory L.J. 1083 (1980).   JUDICIAL DECISIONS   ANALYSIS    General Consideration   Contractual Relinquishment of Parental Rights   Failure to Provide Necessaries or Abandonment   Proceeds of Child's Labor   Unfitness of Parent   Emancipation of Minor   Custody   Tort Recovery   Decisions Under Former Code 1933, § 105-1307    OPINIONS OF THE ATTORNEY GENERAL   When parent surrenders control to third party, minor remains unemancipated.   - Emancipation occurs when parent surrenders parental control of minor child; however, when parent voluntarily surrenders control to third party, there is a substitution of parental control, and minor continues unemancipated as to one to whom minor's custody and control is transferred. 1980 Op. Att'y Gen. No. 80-152.    Domicile of minor is that of minor's parents,  but this can be altered when usual parental authority and control over minor is ended by voluntary or involuntary relinquishment. 1981 Op. Att'y Gen. No. U81-5.   Change of child's domicile for school purposes.   - Domicile of child for school purposes can be altered by voluntary relinquishment of parental authority if proper legal action has been taken or circumstances are present which secure to person with whom child is residing some legal obligation as to the child's welfare and education. 1970 Op. Att'y Gen. No. U70-8.   RESEARCH REFERENCES   Am. Jur. 2d.   - 22A Am. Jur. 2d, Death, § 4. 59 Am. Jur. 2d, Parent and Child, §§ 34, 35, 37 et seq., 99. 67A C.J.S., Parent and Child, §§ 19, 23, 24, 53, 137.   19 Am. Jur. Pleading and Practice Forms, Parent and Child, § 126 et seq.   ALR.    - Liability for or on account of services rendered under erroneous impression as to parentage induced by fraud or mistake, 33 A.L.R. 681.    What items of damage on account of personal injury to infant belong to him and what to parent, 37 A.L.R. 11; 32 A.L.R.2d 1060.    Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531.    Liability of parent for necessaries furnished to adult child, 42 A.L.R. 150.    Abandonment of adopted child, 44 A.L.R. 820.    On whose behalf may action be maintained for the wrongful death of adopted child, 56 A.L.R. 1349.    Liability of infant for necessaries where he lives with his parents, 70 A.L.R. 572.    Relationship of parent and child between tort-feasor and person by whom or for whose benefit death action is brought as affecting right to maintain action under death statute, 119 A.L.R. 1394.    Right of parent to recover for injury to or death of minor child as affected by award of custody of child to another, 147 A.L.R. 482.    By and in whose name suit to annul infant's marriage must be brought, 150 A.L.R. 609.    Right of natural parent, or other person whose consent is necessary to adoption of child, to withdraw consent previously given, 156 A.L.R. 1011.    Effect of existence of nearer related but nondependent member upon right to sue under death statute in behalf of more remotely related but dependent member of same class, 162 A.L.R. 704.   Marriage of child, or probability of marriage, as affecting right or measure of recovery by parents in death action, 7 A.L.R.2d 1380.   Measure and elements of damages for personal injury resulting in death of infant, 14 A.L.R.2d 485; 45 A.L.R.4th 234; 77 A.L.R.4th 411.   Liability of parent or person in loco parentis for personal tort against minor child, 19 A.L.R.2d 423; 41 A.L.R.3d 904; 6 A.L.R.4th 1066.   Liability of landowner for injury to or death of child caused by cave-in or landslide, 28 A.L.R.2d 195.   Liability of landowner for injury to or death of child resulting from piled or stacked lumber or other building materials, 28 A.L.R.2d 218.   What constitutes abandonment or desertion of child by its parent or parents within purview of adoption laws, 35 A.L.R.2d 662; 78 A.L.R.3d 712.   Consent of natural parents as essential to adoption where parents are divorced, 47 A.L.R.2d 824.   Parents' rights with respect to clothing, books, toys, and the like purchased for, or furnished to, child, 61 A.L.R.2d 1270.   Criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396.   Nature of care contemplated by statute imposing general duty to care for indigent relatives, 92 A.L.R.2d 348.   Award of custody of child where contest is between child's father and grandparent, 25 A.L.R.3d 7.   Spouse's or parent's right to recover punitive damages in connection with recovery of damages for medical expenses or loss of services or consortium arising from personal injury to other spouse or to child, 25 A.L.R.3d 1416.   Uninsured motorist clause: coverage of claim for wrongful death of insured, 26 A.L.R.3d 935.   Extraterritorial effect of valid award of custody of child of divorced parents, in absence of substantial change in circumstances, 35 A.L.R.3d 520.   Parent's desertion, abandonment, or failure to support minor child as affecting right or measure of recovery for wrongful death of child, 53 A.L.R.3d 566.   Physical abuse of child by parent as ground for termination of parent's right to child, 53 A.L.R.3d 605.   Sexual abuse of child by parent as ground for termination of parent's right to child, 58 A.L.R.3d 1074.   Death action by or in favor of parent against unemancipated child, 62 A.L.R.3d 1299.   Remarriage of surviving parent as affecting action for wrongful death of child, 69 A.L.R.3d 1038.   Right of natural parent to withdraw valid consent to adoption of child, 74 A.L.R.3d 421.   Mistake or want of understanding as ground for revocation of consent to adoption or of agreement releasing infant to adoption placement agency, 74 A.L.R.3d 489.   What constitutes "duress" in obtaining parent's consent to adoption of child or surrender of child to adoption agency, 74 A.L.R.3d 527.   Power of parent to have mentally defective child sterilized, 74 A.L.R.3d 1224.   Parent's involuntary confinement, or failure to care for child as result thereof, as evincing neglect, unfitness, or the like in dependency or divestiture proceeding, 79 A.L.R.3d 417.   Right of indigent parent to appointed counsel in proceeding for involuntary termination of parental rights, 80 A.L.R.3d 1141.   Right to maintain action or to recover damages for death of unborn child, 84 A.L.R.3d 411.   Liability for child's personal injuries or death resulting from tort committed against child's mother before child was conceived, 91 A.L.R.3d 316.   Liability for injury to or death of child from electric wire encountered while climbing tree, 91 A.L.R.3d 616.   Parent's obligation to support unmarried minor child who refuses to live with parent, 98 A.L.R.3d 334.   Standing of foster parent to seek termination of rights of foster child's natural parents, 21 A.L.R.4th 535.   Validity and application of statute allowing endangered child to be temporarily removed from parental custody, 38 A.L.R.4th 756.   Construction and effect of statutes which make parent, custodian, or other person signing minor's application for vehicle operator's license liable for licensee's negligence or willful misconduct, 45 A.L.R.4th 87.   Recovery of damages for grief or mental anguish resulting from death of child - modern cases, 45 A.L.R.4th 234.   Excessive and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.4th 1076.   Sexual child abuser's civil liability to child's parent, 54 A.L.R.4th 93.   Parent's right to recover for loss of consortium in connection with injury to child, 54 A.L.R.4th 112.   Excessiveness or adequacy of damages awarded for parents' noneconomic loss caused by personal injury or death of child, 61 A.L.R.4th 413.   Validity and construction of surrogate parenting agreement, 77 A.L.R.4th 70.   Recovery of damages for loss of consortium resulting from death of child - modern status, 77 A.L.R.4th 411.   Rights and obligations resulting from human artificial insemination, 83 A.L.R.4th 295.   Continuity of residence as factor in contest between parent and nonparent for custody of child who has been residing with nonparent - modern status, 15 A.L.R.5th 692.   Right of putative father to visitation with child born out of wedlock, 58 A.L.R.5th 669.   Child custody and visitation rights arising from same-sex relationship, 80 A.L.R.5th 1.   Natural parent's indigence as precluding finding that failure to support child waived requirement of consent to adoption - general principles, 82 A.L.R.5th 443.   Natural parent's indigence as precluding finding that failure to support child waived requirement of consent to adoption - factors other than employment status, 84 A.L.R.5th 191.   Who, other than parent, may recover for loss of consortium on death of minor child, 84 A.L.R.5th 687.   Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - general considerations, 4 A.L.R.7th 1.   Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - proof, evidentiary considerations, limits of recovery, parties, 5 A.L.R.7th 4.   Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - impact of other legal concepts and theories of recovery, 6 A.L.R.7th 4.