“How do I know that the baby is really mine? What are my responsibilities if I am not married to the mother?”
When legitimation is needed
Georgia law considers a child as born “out of wedlock” when the parents are not married to each other and they do not subsequently marry. Sometimes, a child is born as a result of the mother’s sex with someone other than the husband during marriage. In either of these two situations, for the biological father to have parental rights or responsibilities for the child, it must be legally established that he is indeed the father. Prior to “legitimation” of a child born out of wedlock, the mother is entitled to custody, and she has all the power over the child.
Paternity test is a possibility
The first step in Georgia is to establish paternity. The mother may file a paternity suit, or the biological father may file a legitimation petition. The involved parties may be required to have genetic testing. Either party may ask the court to order the mother, the alleged father and the child to be tested. The court will grant the request for testing unless there is a good reason not to do it.
Results of genetic testing are not necessarily conclusive. However, if genetic testing establishes at least a 97% probability of paternity, paternity is presumed. The presumption may be overcome if clear and convincing evidence is presented to the court that the result is not correct.
Paternity suit for child support
The mother of a child frequently files a paternity petition with the Georgia court in order to obtain child support. If the court finds that the alleged father is indeed the father of the child, the court will issue an order designating him as the father. This will establish the father’s duty to support the child. In addition to child support, a court order may also cover medical or birth-related expenses incurred by the mother. Both parents have a duty to provide for the maintenance, protection and education of the child, so the mother’s income will be taken into consideration in determining the amount of child support ordered.
Once paternity has been established, the Georgia court order will make the child “legitimate”. From that point forward, the father and child are capable of inheriting from each other the same as if the child were born as a result of a marriage of the parents.
Legitimation suit to establish legal rights
If a father wishes to legitimate a child born out of wedlock, he may petition the Superior Court of the Georgia county of residence of the child’s mother. Occasionally, someone may object to the legitimation petition. For example, if the mother is married to another man when the child is born, he would be considered the “legal father” and he could file an objection which the court would consider. The court always considers the best interest of the child in deciding legitimation cases.
Prior to the child’s first birthday, Georgia law provides that a father of a child born out of wedlock may make his relationship with the child legitimate when both the mother and father have freely agreed, consented to and signed a voluntary acknowledgment of paternity and an acknowledgment of legitimation. The father will not have custody or visitation, however, unless legitimation is done through the court process.
Once the child is legitimated, either parent could receive custody of the child or have visitation rights, as established by the Georgia Court. The child’s name may also be changed.
© 2013 Lauri B. Bracey, Paralegal, with attorney Karen S. Hindson, Hindson & Melton LLC