Legitimation is the process that fathers use to establish parental rights to their children who are born out of wedlock. Without legitimation, fathers have no rights to custody or visitation with their children (although the law still requires them to support such children financially). Instead, absent legitimation, mothers will have sole custody of children who are born out of wedlock, and those children will not have the automatic right to inherit from their fathers. A child is deemed to be “born out of wedlock” in the State of Georgia if that child’s parents 1) were not married when the child was conceived, 2) were not married when the child was born, and 3) have not married since the child was born. Children who are born to married parents, conceived during the parents’ marriage but born after their divorce, or born to unmarried parents who later marry are deemed to be legitimate.
While there are several ways to establish that a man is the biological father of his child, unless that man has legitimated his child, he will not be the “legal” father of the child, and, thus, will not have parental rights to the child. For example, clients are often surprised to learn that even where a biological father has signed a child’s birth certificate, if the child is born out of wedlock, that father will not have any parental rights to the child until such time as an appropriate court enters an order legitimating the child.
Apart from marrying the child’s mother, the only way to legitimate a child in the State of Georgia is to file a Petition for Legitimation with the appropriate Court. (Prior to 2016, administrative legitimation was available alternate avenue to filing a Petition for Legitimation, but that avenue is no longer available in Georgia.) The child’s mother will be formally notified of the filing of the Petition and has the right to attend the hearing set by the Court and oppose the legitimation if she desires. Fathers who file a Petition for Legitimation do not have the absolute right to have the judge sign an order granting their Petition, and courts will only enter such orders upon a finding that legitimation is in the child’s best interests. Where paternity of the child is in dispute, the judge will typically order DNA testing to determine the identity of the biological father as an initial step in any legitimation proceeding.
In nearly all legitimation cases, the judge will also order child support as appropriate under the unique circumstances of the case. Additionally, if the father requests that the child be given his last name or that he (the father) be added to the child’s birth certificate, the Court has the power to order as much. Similarly, if the father requests custody or visitation, the Court will address these issues in the context of the legitimation case.
If you are the biological father of a child born out of wedlock and wish to secure your parental rights concerning the child, or if you have questions about the paternity of a child born out of wedlock, contact Kimberly Coleman Law today for a consultation.