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Legitimation in Georgia: legal rights for unmarried fathers
Summary
In Georgia, when parents aren't married, only the mother has legal custody of the child until the father legitimates the child.[1] Until then, the father has no legal right to custody or visitation.
Being on the birth certificate, signing a paternity acknowledgment or paying child support doesn't legitimate a child. Legitimation takes a court order, or the parents marrying each other and the father recognizing the child as his.[2]
The father files a legitimation petition in Superior Court, usually in the county where the mother lives. In the same case he can ask for custody or parenting time, and the judge can set child support.[3]
Paternity and legitimation aren't the same
- Paternity means a man is legally recognized as the biological father. It can lead to a child support order.
- Legitimation makes him the child's legal father, with the same rights as a father who was married to the mother, including the right to ask for custody or parenting time, and the right for father and child to inherit from each other.[3]
- A signed paternity acknowledgment establishes the biological father but isn't a legitimation.[4] Neither is a father's name on the birth certificate, or paying child support.
- One exception: before July 1, 2016, Georgia had a separate acknowledgment of legitimation form. One signed on or before June 30, 2016 that was valid then still counts.[4] It can't be used for new cases.
Why it matters
- Until a child is legitimated, the mother may exercise all parental power over the child,[1] including deciding where the child lives.
- A father who isn't legitimated can't ask a court to enforce a custody or visitation schedule, because none exists for him yet.
- A legitimated father and child can inherit from each other as if the child were born to married parents.[3]
How to file
- Only the biological father files a legitimation petition. It goes to the Superior Court in the county where the mother, or whoever has legal custody, lives. If she lives outside Georgia or can't be found, it can be filed where the father or the child lives. If an adoption case is pending, it's filed in that county.[3]
- A father can also ask for legitimation in his answer to a paternity case filed against him, or in juvenile court if a dependency case about the child is pending there.[3]
- The petition gives the child's name, age and sex and the mother's name, and any new name the father wants for the child. The mother must be named and served, and so must any other legal father, such as a man who was married to the mother when the child was born.[3]
- Filing fees vary by county; ask the Superior Court clerk. If you can't afford them, you can ask to file without paying by signing a pauper's affidavit.[5]
- If the mother doesn't sign an acknowledgment of service, the sheriff or a process server delivers the papers. If she can't be found, the court may allow notice by newspaper publication.
- Either parent can ask for DNA testing, or the judge can order it.
- After a hearing, the judge can legitimate the child if it's in the child's best interests.[3] If the court finds by clear and convincing evidence that the child was conceived through nonconsensual sex with the mother, the law presumes against legitimation.[3]
Many county family law centers post legitimation packets, and Georgia's courts publish a statewide information sheet on legitimation.
DeKalb's Family Law Information Center has legitimation packets
Custody, parenting time, child support and the child's name
- The petition can also ask for custody, visitation or parenting time. The judge decides those based on the child's best interests.[3]
- The court will enter a child support order, figured with the state guidelines.[3]
- The order says what the child's name will be. A father can ask to change the child's last name, but the judge decides based on the child's best interests.
- Custody stays with the mother unless and until a court order addresses custody.[3]
Don't wait
File as soon as you can, and stay involved and supportive in the meantime. A judge can look at what a father did during the pregnancy and right after the birth, even if he filed quickly. In 2020 the Georgia Supreme Court upheld a denial where the father hadn't given support during the pregnancy.[6]
If another man is the child's legal father, for example because he was married to the mother when the child was born, he must be named and served in the case.[3] These cases are more complicated, so talk to a lawyer.
If you're the mother
- You'll be named in the case and served with the papers, and you have the right to respond and be heard.[3]
- Legitimation doesn't change custody by itself. You keep custody unless the court orders otherwise.[3]
- A mother can't file for legitimation, but she can ask the court to establish paternity and child support.[7] The state child support office can also help with paternity and support.
- If there has been family violence, the judge must consider it in deciding custody and visitation.[3] If you're in danger, call 911. Georgia's statewide domestic violence hotline is 1-800-334-2836.
Questions you might ask a lawyer
- Is legitimation the right step for me, or something else first, like a paternity case?
- Is there anything about my involvement so far that could hurt my petition?
- What custody or parenting schedule should I ask for?
- How would child support be figured in my case?
- Is there another legal father involved, and how does that change things?
Common questions
Does a father have rights if he's on the birth certificate in Georgia?
Not custody or visitation rights. Being on the birth certificate or signing a paternity acknowledgment doesn't legitimate the child. Until a court legitimates the child, or the parents marry, only the mother has legal custody.[1]
How does a father legitimate a child in Georgia?
By filing a legitimation petition in Superior Court, usually in the county where the mother lives. The judge can grant it if it's in the child's best interests, and can also decide custody, parenting time and child support.[3]
Can the mother file for legitimation?
No. Only the biological father can file a legitimation petition. A mother can ask the court to establish paternity and child support.[7]
Does legitimation give the father custody?
Not automatically. It makes him the legal father so he can ask for custody or parenting time. The judge decides those based on the child's best interests, and custody stays with the mother until a court order says otherwise.[3]
Sources
- ^ O.C.G.A. § 19-7-25, custody of a child born to unmarried parents (Justia)
- ^ O.C.G.A. § 19-7-20, legitimacy and marriage of the parents (Justia)
- ^ O.C.G.A. § 19-7-22, legitimation petitions (Justia)
- ^ O.C.G.A. § 19-7-46.1, paternity acknowledgment and birth certificate (Justia)
- ^ O.C.G.A. § 9-15-2, filing without paying fees (FindLaw)
- ^ Mathenia v. Brumbelow (Ga. 2020), a father's conduct during the pregnancy (Justia)
- ^ O.C.G.A. § 19-7-43, who can ask to establish paternity (Justia)
- Georgia courts, legitimation packet FAQs and terms (PDF)
- DeKalb County Family Law Information Center, services and packets
Laws and court rules change. If something here looks out of date, email help@divorce.city.