What should a South Carolina father do to have rights to the child?

Voluntary Acknowledgment of Paternity

There is a SC legal process called a verified voluntary acknowledgment of paternity.  S.C. Code Ann. §63-17-50. The father must have an opportunity to seek legal advice before signing such an acknowledgment, and the acknowledgment must be sworn and witnessed.  The witness must also prepare a written certification that the acknowledgment was voluntary and not under duress.  After sixty days, the father can only challenge the acknowledgment in court on the basis of fraud, duress, or material mistake of fact.  A lawyer should prepare the acknowledgment to make sure it meets the requirements of the law.

What if I want custody or visitation?

The voluntary acknowledgment of paternity does not give the father rights to custody or visitation with the child, however.

A father can file an action to establish paternity in family court.  S.C. Code Ann. §63-17-10.  As part of this case, the father may be granted custody or visitation as well as becoming the legal father of the child.  Child support will also be established for the child.  A paternity action cannot be completed until the child is born (although it can be started).  S.C. Code Ann. §63-17-10(D).

Paternity action agreements

Frequently, the mother and father reach a voluntary written agreement prepared by a lawyer and submitted to the court along with financial declarations and affidavits.  The parties can agree on custody, visitation, and child support for the child, and the judge will approve the agreement if it is fair.  S.C. Code Ann.  §63-17-40

What if she files a paternity action and I’m not sure I’m the father?

What if the father is not certain he is the biological father of the child?  Genetic tests can be ordered by the Court if the mother brings a paternity case seeking child support.  There are a number of other facts or evidence that can be introduced concerning the issue of paternity if it is contested.  See S.C. Code Ann. §63-17-60.

Contact Hindson & Melton LLC by e-mail or in Charleston, SC at (843) 410-9038 to schedule a consultation if you have questions about your rights as a South Carolina father.

© Karen S. Hindson, Hindson & Melton LLC – August 3, 2013

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