Legal Commentary. In addition to outlining who has parental power over a minor child in subsection (a) and how that parental power can be lost in subsection (b), Georgia statute 19-7-1(c) provides that someone, at all times, will be vested with the right to recovery for the wrongful death of a child. Subsection (c)(2) gives further details on the how the parents vested with the right to recovery for the wrongful death of the child jointly or individually are vested. For example, if the parents of the child are married and living together at the time of the wrongful death of the child, the parents jointly are vested with the right of recovery. If the parents are married but not living together, or are divorced or legally separated, each parent is vested individually with the right of recovery for the wrongful death of their child. As an extension to this subsection, the Georgia Legislature provided in subsection (c)(6) that either parent of the deceased child, if the parents are divorced, separated or living apart, may file a motion with the court to have any recovery awarded to be fairly apportioned. If this motion is filed, a hearing will be held for each parent to present evidence regarding that parent’s relationship to the child. This hearing will affect whether the parents equally share the right of recovery or whether the parents will be given a percentage of the recovery which is not equal to the other parent’s share. Also, if only one parent survives the wrongful death of the child, then that surviving parent individually holds the right of recovery.
Under subsection (c)(3) of Section 19-7-1, Georgia Legislature’s clarify that the intent of subsection (c) is to ensure that someone has a right of recovery in every homicide of a child. If the child does not have a spouse or child surviving his or her death, then it is the parent(s) that have the right of recovery as per subsection (c)(2). If there is no spouse, child or parent surviving the child, Section 19-7-1 directs us to follow the procedure in Section 51-4-5 that vests the right of recovery in the administrator or executor of the estate.
This statute also provides a provision directing us to the definitions provided for in Section 51-4-1 for “full value of the life of the decedent, as shown by the evidence” and “homicide.” Section 19-7-1 also clarifies, in subsection (c)(5), that even though a decedent child was born out of wedlock, the right of recovery continues. Atlanta area wrongful death lawyer who also works with severely injured children, I understand that the proper reading of this statute is extremely important. See full text below:Section 19-7-1 “Parental Power; Recovery for Homicide of Child”
(a) 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.
(b) 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; or
- Cruel treatment of the child.
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.
(c)(1) 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.
(2) 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.
(3) 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.
(4) In this subsection the terms ‘homicide’ and ‘full value of the life’ shall have the meaning given them in Chapter 4 of Title 51.
(5) In actions for recovery, the fact that the child was born out of wedlock shall be no bar to recovery.
(6) 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 post-judgment 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.