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Legitimation


In the state of Georgia, if a couple is unmarried at the time of their child’s birth, the father must take the intentional step of establishing legitimation. If a father does not establish legitimation, the child is considered illegitimate and the father of the child does not have any rights when it comes to the child’s welfare.

There are two ways a father can establish legitimation in Georgia: file a petition seeking to legitimate the child or marry the mother of the child. If the father of an illegitimate child does not establish legitimation, only the mother of the child has custody rights.

Legitimation can be a complicated process due to the complex nature of certain guidelines surrounding it. For example, if a child is born in a Georgia hospital, the mother and father will be provided with an acknowledgement along with a voluntary acknowledgement of paternity. Both of the parents are required to sign, have the signatures notarized, and then the form must be submitted to the State Office of Vital Records. Consent can be rescinded by either parent within 60 days after signing.

O.C.G.A. 19-7-22 (2010) 

19-7-22. Petition for legitimation of child; requirement that mother be named as a party; court order; effect; claims for custody or visitation; third-party action for legitimation in response to petition to establish paternity

(A) A father of a child born out of wedlock may render his relationship with the child legitimate by petitioning the superior court of the county of the residence of the child’s mother or other party having legal custody or guardianship of the child; provided, however, that if the mother or other party having legal custody or guardianship of the child resides outside the state or cannot, after due diligence, be found within the state, the petition may be filed in the county of the father’s residence or the county of the child’s residence. If a petition for the adoption of the child is pending, the father shall file the petition for legitimation in the county in which the adoption petition is filed.

(B) The petition shall set forth the name, age, and sex of the child, the name of the mother, and, if the father desires the name of the child to be changed, the new name. If the mother is alive, she shall be named as a party and shall be served and provided an opportunity to be heard as in other civil actions under Chapter 11 of Title 9, the “Georgia Civil Practice Act.”

(C) Upon the presentation and filing of the petition, the court may pass an order declaring the father’s relationship with the child to be legitimate, and that the father and child shall be capable of inheriting from each other in the same manner as if born in lawful wedlock and specifying the name by which the child shall be known.

(D) A legitimation petition may be filed, pursuant to paragraph (2) of subsection (e) of Code Section 15-11-28, in the juvenile court of the county in which a deprivation proceeding regarding the child is pending.

(E) Except as provided by subsection (F) of this Code section, the court shall upon notice to the mother further establish such duty as the father may have to support the child, considering the facts and circumstances of the mother’s obligation of support and the needs of the child as provided under Code Section 19-6-15.

(F) After a petition for legitimation is granted, if a demand for a jury trial as to support has been properly filed by either parent, then the case shall be transferred from juvenile court to superior court for such jury trial.

(F.1) The petition for legitimation may also include claims for visitation, parenting time, or custody. If such claims are raised in the legitimation action, the court may order, in addition to legitimation, visitation, parenting time, or custody based on the best interests of the child standard. In a case involving allegations of family violence, the provisions of paragraph (4) of subsection (a) of Code Section 19-9-3 shall also apply.

(g)(1) In any petition to establish paternity pursuant to paragraph (4) of subsection (a) of Code Section 19-7-43, the alleged father’s response may assert a third-party action for the legitimation of the child born out of wedlock. Upon the determination of paternity or if a voluntary acknowledgment of paternity has been made and has not been rescinded pursuant to Code Section 19-7-46.1, the court or trier of fact as a matter of law and pursuant to the provisions of Code Section 19-7-51 may enter an order or decree legitimating a child born out of wedlock, provided that such is in the best interest of the child. Whenever a petition to establish the paternity of a child is brought by the Department of Human Services, issues of name change, visitation, and custody shall not be determined by the court until such time as a separate petition is filed by one of the parents or by the legal guardian of the child, in accordance with Code Section 19-11-8; if the petition is brought by a party other than the Department of Human Services or if the alleged father seeks legitimation, the court may determine issues of name change, visitation, and custody in accordance with subsections (b) and (f.1) of this Code section. Custody of the child shall remain in the mother unless or until a court order is entered addressing the issue of custody.

(2) In any voluntary acknowledgment of paternity which has been made and has not been rescinded pursuant to Code Section 19-7-46.1, when both the mother and father freely agree and consent, the child may be legitimated by the inclusion of a statement indicating a voluntary acknowledgment of legitimation.

Due to the complex nature of legitimation, it is important to have an experienced attorney by your side who specializes in legitimation cases. At Brown, Dutton & Crider, our Georgia Family Attorneys will ensure that your rights are protected. Call today at (770) 422-4241 or email info@gafamilylawyers.com to schedule a consultation to discuss your options.

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