What is Legitimation?
Legitimation is a way for a father to claim legal parentage of a child “born out of wedlock.” It goes beyond a mere acknowledgment of paternity. In Georgia, establishing paternity gives a court the power to enforce a father’s duty to support a child financially, while legitimation gives a child the right to inherit from a father, as well as the right to obtain family medical history on the father’s side, and the right to placement in the home of a relative on the father’s side in the event that the mother becomes unable to care for the child. Legitimation also gives the father the right to inherit from the child, and the right to petition the court for custody or visitation. Without legitimation, only the mother of a child born out of wedlock has any custody rights.
What Does “Born out of Wedlock” Mean?
Generally speaking, a child in Georgia is “born out of wedlock” if the parents aren’t married to each other at the time of the birth, and the child is not legitimized after the birth. If the parents' marriage is annulled after the child is born, the child will still be legitimate. If the mother is married when the child is born or has ended a previous marriage less than about nine months prior to the birth, the law presumes that the mother’s husband (or former husband) is the child’s father, and the child is legitimate. If the couple conceived by means of artificial insemination after mutual written consent, the presumption of legitimacy is absolute.
How is a Child Born out of Wedlock Legitimized?
If the mother wasn’t married at the time of birth (or within the nine months prior to the birth) the biological father can legitimate the child by marrying the mother. If the child is less than one year old, the biological father can legitimate the child by signing an “acknowledgment of legitimation.” If a mother gives birth in a Georgia hospital, the hospital staff will provide the mother and the father (if he is there) with a document that includes this acknowledgment along with a voluntary acknowledgment of paternity. Both parents must sign the document, have the signatures notarized, and submit the form to the State Office of Vital Records. Either parent can rescind consent to the acknowledgment within 60 days after signing it.
If the mother was married at the time of the birth (or within the nine months prior to the birth) to someone other than the biological father, the biological father can’t legitimate the child simply by marrying the mother or signing a voluntary acknowledgment of paternity, due to the legal presumption that the mother’s husband (or former husband, if they have divorced) is the legal father.
The biological father would first have to establish paternity and then file a petition for legitimation in court. The mother’s husband or former husband can challenge the petition, unless he has divorced the mother on the grounds that she gave birth to another man’s child. The mother can challenge the petition, provided that her parental rights have not been terminated, and no termination action is pending. An adoptive parent or adoption agency with custody of the child can also challenge the petition.
Overcoming the presumption that the mother’s husband or former husband is a child’s father is not easy and requires very strong proof. A court won’t allow a mother to claim that her former husband is not the father of a child born during their marriage if she signed a divorce complaint and settlement agreement stating that he was, and she and the alleged biological father knew from the beginning of the pregnancy about his possible paternity, but chose to hide it.
Under the same circumstances, if the biological father marries the mother after her divorce, he cannot challenge the presumption in favor of the former husband if he remained silent about his possible paternity while the mother accepted child support from her former husband.
Even if the mother was not married when the child was born, and a DNA test establishes the biological father’s paternity without question, he won’t have an automatic right to have a court grant his petition for legitimation. The court will consider the best interests of the child. If the biological father delayed making any effort to develop a relationship with the child or support the child financially, a court may find that he abandoned his “opportunity and interest” in legitimation.
For more information about establishing paternity or legitimation, contact an attorney or the Georgia Department of Human Services Division of Child Support Services.