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O.C.G.A. 19-7-1 (FULL TEXT AS OF AUGUST 2021)

 

O.C.G.A. 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:

(1)  Voluntary contract releasing the right to a third person;

(2)  Consent to the adoption of the child by a third person;

(3)  Failure to provide necessaries for the child or abandonment of the child;

(4)  Consent to the child's receiving the proceeds of his own labor, which consent shall be revocable at any time;

(5)  Consent to the marriage of the child, who thus assumes inconsistent responsibilities;

(6)  Cruel treatment of the child;

(7)  A superior court order terminating parental rights in an adoption proceeding in accordance with Chapter 8 of this title; or

(8)  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.

(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.

(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. 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.

(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:

(A) If the parents are living together and not divorced, the right shall be in the parents jointly;

 

(B) If either parent is deceased, the right shall be in the surviving parent; or

 

(C) 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 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.

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Georgia statutes specifically give the parents of a minor child the right to pursue a wrongful death claim for the minor child’s death.

 

This right is jointly shared.  Meaning, either parent can pursue the wrongful death claim, even over the objection of the other parent.

 

For pleading requirements, the better practice is to plead that the child is not survived by a spouse or child, even if it seem redundant.

 

However, for minor children, the parent also has the exclusive right to sue for medical and funeral expenses.  This right normally resides solely in the estate administrator based on the rights conferred under O.C.G.A. § 51-4-5(b).  However, parents of minor children are statutorily obligated to provide for the “maintenance, protection, and education” of their children.  So, it stands to reason that only the parents can bring a claim to recover for funeral and medical expenses.

 

Finally, only the estate administrator is allowed pursue any “survival action” claims – i.e. those claims that the child could have brought had they not been killed.  This usually involves any claims for pain and suffering the child experienced immediately prior to their death.

 

References:

O.C.G.A. § 51-4-4

O.C.G.A. § 19-7-1(c)(1) & (c)(2)

O.C.G.A. § 19-7-2

O.C.G.A. § 9-2-41

Blanton v. Moshev, 262 Ga. 254, 255, 416 S.E.2d 506, 507 (1992)

Capps v. Mullen, 172 Ga. App. 297, 297, 322 S.E.2d 747, 748 (1984)

Saunds v. Forsythe, 112 Ga. App. 269, 269, 144 S.E.2d 926, 927 (1965)

Blackstone v. Blackstone, 282 Ga. App. 515, 518 n.5, 639 S.E.2d 369, 372 (2006)

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1)  Who can sue for the wrongful death of a minor child?

 

2)  Can a wrongful death claim be pursued for an unborn fetus?

Georgia law specifically allows a wrongful death claim for the death of an unborn fetus. 

 

However, this claim only exists if the child had a “detectable human heartbeat” at the time of death.

 

References:

 

O.C.G.A. § 19-7-1(c)(1)

O.C.G.A. § 1-2-1(e)(1)

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3)  What if one parent is deceased and one is alive – who can sue for wrongful death?

If one parent is deceased, the right to pursue a wrongful death claim belongs exclusively to the surviving parent.

 

Stated another way, the right to sue for the wrongful death of the child does not pass to the deceased parent’s estate administrator.  The right belongs solely to the surviving parent.

 

References:

 

Hosley v. Davidson, 211 Ga. App. 529, 532, 439 S.E.2d 742, 745 (1993)

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4)  What if the parents are divorced – who can sue for wrongful death?

The right to pursue a wrongful death claim belongs to both parents jointly, even if divorced. 

 

So, one parent can still pursue the wrongful death claim without the consent or cooperation of the other parent.

 

It’s important to note that as long as the parental right exists and has not been terminated by a court order, either parent can potentially pursue the wrongful death claim.  This is true even if the parent is estranged, has no relationship with the child, and there is no evidence of dependency by the child on the parent.

 

However, the estranged parent’s right to sue can still be challenged.  For instance, a court can find that the estranged parent forfeited their right to sue due to abandonment or nonsupport.  If these challenges are raised, the burden is on the parent to prove they did not abandon the child and/or provided reasonable financial support, based on the circumstances.

 

References:

 

O.C.G.A. § 19-7-1(c)(1)(C)

City of Fairburn v. Clanton, 102 Ga. App. 556, 558, 117 S.E.2d 197, 198–99 (1960)

Sapp v. Solomon, 252 Ga. 532, 532, 314 S.E.2d 878, 879 (1984)

Pickett v. Amoco Oil Co., 735 F.2d 445, 446 (11th Cir. 1984)

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5)  What if the minor child has no surviving parent – who can sue for wrongful death?

If the child has no surviving parent (or legal guardian who has parental rights), the right to sue for wrongful death of the minor child passes to the administrator of the minor child’s estate.

 

The statute specifically lays out that “[i]n 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 . . . .”  If this language is unclear, then it goes even further to state “[t]he 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.”  So, the right will always belong to someone.

 

Any wrongful death proceeds that the estate administrator obtains is held in the estate for the child’s “next of kin.”   

 

In this rare scenario, the estate administrator is authorized to bring all claims for the death of the child – wrongful death and estate-based claims.

 

References:

 

O.C.G.A. § 19-7-1(c)(3)

O.C.G.A. § 51-4-5(a)

Reese v. United States, 930 F. Supp. 1537, 1540 (S.D. Ga. 1995)

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6)  Does it matter if a child is born out of wedlock?

Whether a child is born out of wedlock is irrelevant with regard to the rights of the natural parents.

 

So, a natural parent can still sue for the death of the child, even if the parent has not legitimated the child through a Georgia court prior to their death. 

 

As a practical matter, there may be a challenge to putative father’s status as natural father.  In this case, the natural father may need to take a paternity test to prove that they have the standing to pursue a wrongful death claim.

 

And, parental rights can be terminated “without notice” if one of the parents cannot be found and has made no attempt to be part of the child’s life, for purposes of this statute.

 

References:

 

O.C.G.A. § 19-7-1(c)(5)

Sapp v. Solomon, 252 Ga. 532, 532, 314 S.E.2d 878, 879 (1984)

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7)  Can a nonresident alien sue for the wrongful death of a child?

Citizenship is not required in order for a parent to sue for the wrongful death of a child in Georgia.

 

So, a nonresident alien can still sue for the death of their child.

 

References:

 

Gonzalez v. Dep't of Transp., 279 Ga. 230, 231, 610 S.E.2d 527, 528–29 (2005)

Kolev v. Home Depot USA, Inc., 275 Ga. App. 53, 54, 619 S.E.2d 754, 755 (2005)

Auto Doors, Inc. of Georgia v. Zivoluba, 277 Ga. App. 288, 289, 626 S.E.2d 256, 257 (2006)

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8)  What happens when one parent causes the death of the child?

If one parent is claimed to have caused the death of the child, the court has equitable power to allow the remaining parent to sue other for wrongful death.

 

This power applies regardless of whether the Georgia’s Slayer Statute applies.  The Slayer Statute generally prevents a person who “feloniously and intentionally” causes the death of another indiviudal from profiting from the death of their victim.

 

However, there is a gray area when a parent’s negligent conduct causes death to their child.  In that case, atleast one Georgia Court of Appeal has found that the intent of the legislature was not to allow the negligent parent from profiting from their actions, even if the Slayer Statute did not apply.

 

References:

 

Brown v. Liberty Oil &c. Corp., 261 Ga. 214, 403 S.E.2d 806 (1991)

Belluso v. Tant, 258 Ga. App. 453, 455, 574 S.E.2d 595, 597–98 (2002)

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9)  What wrongful death damages can be pursued for the death of a child?

The wrongful death damages that can be pursued are for the “full value of the life of the child.”

 

For purposes of this statute, the “full value of the life” is defined in the same way as the traditional wrongful death statutes that applies to adults.

 

For minor children, this usually means that it left to the enlightened conscience of the jury requiring no exact proof.  This is because minor children likely have no provable lost income or other valuable services.

 

References:

 

O.C.G.A. § 19-7-1(a)

O.C.G.A. § 19-7-1(c)(1) & (c)(4)

Seaboard Coast Line R. Co. v. Duncan, 123 Ga. App. 479, 481, 181 S.E.2d 535, 538 (1971)

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10)  Does the “full value of the life” of a minor child include lost future wages?

More likely than not, the wrongful death damages for the death of a minor child will not include lost future wages.

 

That’s because measurable pecuniary damages, such as lost future wages, cannot be speculative. 

 

Since minor children (especially those of “tender years”) have not completed their education and/or started their careers, any claims for future career losses in their chosen profession would be purely speculative.

 

However, this is not an absolute rule.  If the child has a known earning capacity (i.e. they are working at the time of death or of a legal age to be working) then there is some evidence to determine future lost wages. 

 

To the extent that future lost wages are allowed, they can be proven by using a mortality table and estimates based on the minimum wage.  And, they must be reduced to present cash value.

 

References:

 

Seaboard Coast Line R. Co. v. Duncan, 123 Ga. App. 479, 481, 181 S.E.2d 535, 538 (1971)

Collins v. McPherson, 91 Ga. App. 347, 348–49, 85 S.E.2d 552, 554 (1954)

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11)  What evidence is admissible for measuring the “full value of the life of a child”?

 

There is no precise formula for measuring the full value of the life of a minor child.

 

And, since the “full value of the life” includes intangible components, that leaves the measure of proof open to various evidence.

 

For instance, one federal court took in to account a wide range of evidence for a six-year-old child, including:

 

  • The child had “an excellent relationship” with parents, extended family, at school, at church, and in Girl Scouts;

 

  • The child showed promise as a student and a person;

 

  • Her parents were not married and lived a significant distance apart.

 

Meanwhile, for an unborn fetus, it was clear that the child “would have had a loving, caring mother who would have done her best to provide for [the unborn child] with all of the things that he would have needed in life.”  And, the unborn fetus would have had a large, supportive family from which to seek “advice, counsel, and companionship.”

 

The measure of proof appears to be a pretty wide, liberal measure that heavily depends on the facts of the case.

 

References:

 

Childs v. United States, 923 F. Supp. 1570, 1584–85 (S.D. Ga. 1996)

S. Fulton Med. Ctr., Inc. v. Poe, 224 Ga. App. 107, 112, 480 S.E.2d 40, 45 (1996)

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12)  Can a parent recover for the loss of services of a minor child?

 

A parent is entitled to pursue wrongful death damages that include “loss of services” of the child to the parent, because the statute specifically states that the child’s parents “are entitled to his services and the proceeds of his labor” until the child reaches the age of majority. 

 

So, if the child works a job and provides financial support, the parent is entitled to claim those losses.  Or, if the child provides household services (cooking, cleaning, yard maintenance), the value of those services can also be claimed.  Loss of household services must be provable and cannot be speculative.  For instance, on court has held that household services are too speculative for a child of mere six years old.

 

The law usually distinguishes the methods of calculating the “full value of the life” of a minor child based on their age and the evidence.

 

References:

 

O.C.G.A. § 19-7-1(a)

Kehely v. Kehely, 200 Ga. 41, 41, 36 S.E.2d 155, 156 (1945)

S. Fulton Med. Ctr., Inc. v. Poe, 224 Ga. App. 107, 112, 480 S.E.2d 40, 45 (1996)

Childs v. United States, 923 F. Supp. 1570, 1579–80 (S.D. Ga. 1996)

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13)  Can a parent recover for their own mental pain and suffering of losing a child?

 

Unfortunately, there is no independent right of a parent to recover for the heartbreaking lose of a child that is measured by their own mental pain and suffering.

 

As a practical matter, though, these type of damages are captured in the “full value of the life of the child” in that an element of the intangible component of these damages include the parent’s “society, advice, example, and counsel.”  In a way, these damages are indirectly captured.

 

However, in rare scenarios, a parent is entitled to recover for emotional damages if they actually witness the event that caused the child’s suffering and death.

 

References:

 

O.C.G.A. § 19-7-1

S. Fulton Med. Ctr., Inc. v. Poe, 224 Ga. App. 107, 112, 480 S.E.2d 40, 45 (1996)

Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 588, 533 S.E.2d 82, 86–87 (2000)

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14)  How are wrongful death damages divided between divorced or separated parents?

 

If the parents are divorced, separated, or living apart, the wrongful death damages are shared equally.

 

Thus, there is a presumption that each parent has a right to recover.

 

However, this equal distribution can be challenged in either a pre-trial or post-trial motion.  When one parent files a pretrial motion with the court, the judge is allowed apportion the fair right to recovery based on her or her discretion.

 

If a pretrial motion is not utilized, then a post trial hearing is held.  Either way, the judge will consider evidence of each respective parent’s relationship with the deceased child, as well as the “permanent custody, control, and support” of the child and other factors.

 

Generally speaking, the custodial parent is entitled to more wrongful death proceeds.

 

Also, a parent can execute a release, releasing their right to recovery.  Presumably, the parents can also negotiate their respective apportionment rights with regard to wrongful death proceeds to avoid court intervention.

 

References:

 

O.C.G.A. § 19-7-1(c)(2)(C) & (c)(6)

Ramos v. Ramos, 173 Ga. App. 30, 31, 325 S.E.2d 415, 417 (1984)

Richardson v. Barber, 241 Ga. App. 254, 257, 527 S.E.2d 8, 11 (1999)

Hall v. Bailey, 253 Ga. App. 595, 560 S.E.2d 76 (2002)

Wymbs v. Stokes, 236 Ga. App. 742, 743, 512 S.E.2d 669, 671 (1999)

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15)  What happens to wrongful death proceeds for an “absent” parent who cannot be located?

 

An “absent” parent is still entitled to their share of wrongful death proceeds, whatever that amount may be.

 

The statute specifically states that the absent parent’s share shall be held for their benefit until they are found or for atleast two years.

 

If the absent parent is not found after two years, the present parent can file a petition with the court for the right to receive payment of the funds.

 

References:

 

O.C.G.A. § 19-7-1(c)(2)(C)

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16)  Can a divorced or separated parent lose their right to claim any wrongful death proceeds?

 

It is possible for a parent who is divorced, separated, or living apart to lose their right to wrongful death damages.

 

This can be done if they do something to lose their parental power.  Subsection (b) of the statute specifically identifies ways the parental power can be terminated for purposes of recovering wrongful death proceeds, including:

 

  • 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

 

So, if the parent abandons the child and does not pay child support, the judge can find that the parental rights have been terminated such that the parent is entitled to no wrongful death proceeds.

 

The fact that a parent did not contribute money to support the child is not dispositive.  All factors are considered.  One Georgia court found that there was no basis for terminating the parent’s right to recover because though the parent did not pay child support, he still exercised his visitation rights, occasionally bought the child gifts, school clothes, and other necessary items, and the child lived with the parent during the summer.  So, it is a high standard to terminate parental rights.

 

However, termination of parental rights does not prevent the parent from inheriting an proceeds recovered from estate-based claims.  That’s because the right to inherit from an estate is based on the laws of descent and distribution, and as an heir to the deceased child, the parent is entitled to inherit.

 

References:

 

O.C.G.A. 19-7-1(b)

Abraham v. Black, 346 Ga. App. 229, 230, 816 S.E.2d 351, 353 (2018)

Richardson v. Barber, 241 Ga. App. 254, 256, 527 S.E.2d 8, 10 (1999)

Dove v. Carver, 197 Ga. App. 733, 735, 399 S.E.2d 216, 218–19 (1990)

Blackstone v. Blackstone, 282 Ga. App. 515, 517, 639 S.E.2d 369, 371 (2006)

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17)  How is a child’s “next of kin” determined?

 

A child’s next of kin is determined based on Georgia’s laws of descent and distribution.

 

This is not the same as “heirs at law.”  These terms are often used in the construction and interpretation of wills.

 

This is important for determining who has a right to inherit for any claims pursued by the child’s estate.  So, if the child has a last will and testament, this will not affect the rights of their next of kin to inherit for any claims pursued by the estate.  It makes it impossible to calculate.

 

References:

 

Stewart v. Bourn, 250 Ga. App. 755, 755–56, 552 S.E.2d 450, 451 (2001)

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