Legitimation in Georgia

If you’re an unmarried father in Georgia, you need to “legitimize” your child if you want visitation or custody rights, or if you want your child to have inheritance rights. Learn how the legitimation process works.

By , Legal Editor
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Unlike most states and the federal government, Georgia still distinguishes between "legitimate" and "illegitimate" children. If you want visitation or parenting time with your child—but you aren't married to the mother—it's not enough to establish your paternity of the child. You'll also have to go through a special procedure called "legitimation" in order to gain parental rights.

What Does "Born Out of Wedlock" Mean Under Georgia Law?

Under Georgia law, a child is born out of wedlock if:

  • the parents weren't married when the child was born or conceived, or
  • the child was conceived as a result of the mother's affair with a man who wasn't her husband.

Until a child born out of wedlock has been "legitimized," only the mother has custody rights and parental power over the child. However, both biological parents will still have a legal obligation to support the child. That means that if you're an unmarried father, you could be ordered to pay child support once your paternity has been established in Georgia, even if you haven't taken the necessary steps to establish your rights as a legal parent. (Ga. Code §§ 19-7-24, 19-7-25 (2022).)

Requirements for Child Legitimation in Georgia

Previously, unmarried parents in Georgia could legitimate their child if both of them signed an "acknowledgment of legitimation," which was included in the form for the voluntary acknowledgment of paternity. However, Georgia eliminated that option in 2016 (although these acknowledgements remain valid if they were signed between July 1, 2008, and June 30, 2016).

Now, there are only two ways that a biological father can "legitimize" a child who was born out of wedlock in Georgia:

  • by marrying the mother and recognizing the child as his own, or
  • by getting a court order declaring that his relationship with the child is legitimate.

(Ga. Code §§ 19-7-20(c), 19-7-22 (2022).)

Who May Claim Legitimation of a Child in Georgia?

Georgia's law allows only the biological father of a child born out of wedlock to file a legitimation petition. (Ga. Code § 19-7-22(b) (2022). That means that if you believe you're the father and want to establish your legal parental rights, you'll first need to establish your paternity, either by signing (with the mother) a voluntary paternity acknowledgment, or by getting a court order. (Learn more about how to establish paternity in Georgia.)

Also, because the statute uses gendered language, courts will reject a legitimation petition filed by an unmarried same-sex partner of a child's mother. (Hill v. Burnett, 825 S.E.2d 617 (Ga. Ct. App. 2019).)

How to File for Child Legitimation

In order to request a legitimation order from the court, you'll need to file a petition for legitimation with the child's name, age, and gender, as well as the name of the mother and any new name you would like for the child. If the child already has a legal father (such as the mother's husband or another man who was named on the child's birth certificate), you should also provide that man's name.

As part of the legitimation petition, you may also include any requests for visitation, parenting time, or custody. (Ga. Code § 19-7-22(b), (f) (2022).) You might need to attach other forms with your petition, including a worksheet for calculating child support in Georgia and a proposed parenting plan.

Where to File a Legitimation Petition

You should file the legitimation petition with the Georgia Superior Court Clerk's office in the county where the mother (or someone else with legal custody or guardianship of the child) lives. However, you may file in the county where you live if the mother lives outside of Georgia, or if you haven't been able to find her after making serious efforts to do so.

If someone has filed a petition to adopt the child, you should file the legitimation petition in the county where the adoption proceeding is taking place.

How Much Does It Cost to File for Legitimation?

The court fee to file a legitimation petition varies from county to county in Georgia, but it's usually over $200. For instance, the fee in DeKalb County is $213 (as of September 2022). You should be able to find the fee in the county where you'll be filing the petition by calling the court clerk's office or searching on the clerk's website.

If you can't afford the fee, you may ask the court to allow you to file for free by submitting a "Poverty Affidavit" with information about your income and expenses. You should be able to get this form from the local Family Law Information Center. After you've filed the form, the court clerk will let you know whether you qualify.

You might also have additional costs to serve the petition or to hire a lawyer (more on both of those issues below).

Serving the Legitimation Petition

You must notify the mother (and the existing legal father, if there is one) about your legitimation petition. Usually, you'll do this by arranging to have the local sheriff (or deputy) or a certified process server hand-deliver the documents. (Ga. Code §§ 9-11-4, 19-7-22(c) (2022).)

However, if the mother agrees to accept the documents from you and waive the formal "service of process," you may have her sign a waiver and acknowledgement of service. (Ga Code § 9-10-73 (2022).)

If you haven't been able to find the mother, ask the court clerk how to request another method of service, such as by publishing a notice in the newspaper.

Can the Mother and Father Agree to Legitimation?

If your child's mother agrees to have you declared the legal father, the two of you may sign a settlement agreement as part of your legitimation proceeding. The settlement should also include your agreements on all the other issues you've raised in your petition, including:

  • changing the child's surname
  • child support, and
  • custody, visitation, or parenting time.

You'll need to submit the settlement agreement to the court for approval, along with other relevant documents such as your parenting plan.

What If the Child's Mother Objects to Legitimation?

The child's mother has the right to file a response to your legitimation petition and object to having you declared the legal father. She'll receive notice of the hearing on your petition and will have the right to appear at the hearing, where she may testify and present other evidence as to why it wouldn't be good for her child to have a legal relationship with you.

The Legitimation Hearing

After you've filed your legitimation petition, the court will schedule a hearing for a judge to consider whether it's in the child's best interests for you to be declared the legitimate father. If you and the mother have submitted a settlement agreement, the judge will usually sign the order declaring you as the child's legitimate father.

However, if the child's mother (or legal father, if there already is one) has objected to your petition, the judge will have to weigh your evidence along with the mother's before deciding what would be best for the child. Among other things, the judge might consider:

  • whether you promptly stepped up to request legal status as the child's father
  • whether and to what extent you've tried to have a relationship with your child (and whether the mother tried to stop you from doing that), and
  • whether you have accepted some responsibility for the child's future, such as by providing financial or other support for the child.

If your paternity hasn't already been established (for instance, in an action by Georgia's Division of Child Support Services), the judge may order genetic testing to ensure that you actually are the child's biological father.

If the mother (or anyone else) presents clear and convincing evidence that the child was conceived during nonconsensual sex (or when the mother was younger than 10), the judge will presume that it wouldn't be good for the child to legitimize your parental relationship. (Ga. Code § 19-7-22(d) (2022).)

How Long Does the Legitimation Process Take?

The amount of time it takes to get a ruling on your legitimation petition will depend on the circumstances, including the county where you've filed the petition and whether you have a settlement agreement. In Fulton County, the court will usually schedule a hearing within about 30 days after you file your petition. You can ask the court clerk to learn how and when you might get a hearing date.

Can You Get Visitation or Custody in a Legitimation Proceeding?

If you've requested custody or visitation orders in your legitimation petition, the judge will address those issues in the hearing only after deciding that you should be the child's legitimate father. Obviously, your custody-related request won't be an issue if the judge decides not to grant your legitimation petition, because that will mean you won't have any parental rights. (Ga. Code § 19-7-22(g) (2022).)

As with all determinations about child custody in Georgia (including both physical and legal custody), the judge will decide which parenting arrangements would be the child's best interests, based on a long list of factors spelled out in the law. (Ga. Code § 19-9-3 (2022).)

If you don't include a request for visitation or custody in the legitimation petition, you may make such a request in a separate custody proceeding at some point after you've been declared the child's legal father.

What Are the Consequences of Legitimation?

If the judge grants your legitimation petition, it will not only affect your right to request custody or visitation. The order will also mean that:

  • your child will have the same inheritance and other legal rights as any other legitimate children
  • you would be able to inherit from your child as the legal father
  • the judge will decide which surname your child will use
  • if the child already had a legal father before you filed your petition, the judge must terminate's that man's parental rights, and
  • the judge will issue a child support order, after providing you with notice and a hearing on that issue.

(Ga. Code § 19-7-22 (2022).)

How to Get Help With Legitimizing Your Child in Georgia

If you and the child's mother submit a written settlement agreement as part of your legitimation proceeding, you might be able to get through the process without hiring a lawyer. And if you need help reaching an agreement, you can try mediation.

Although court forms for legitimation in Georgia aren't as readily available online as for divorce, you can search for the forms you'll need on the website for the Family Law Information Center in the county where you'll be filing the petition. For instance, the Family Law Information Center for the Northeastern Judicial Circuit (serving Hall and Dawson Counties) provides online packets with legitimation forms and instructions. But you should know that the forms and information you can find online might be outdated if the law has recently changed. Also, they won't apply in all situations.

You can also call or visit the court clerk's office in the county where you'll be filing the petition to get printed versions of the forms (usually for a small fee) and answers to your questions.

Legitimation proceedings can be complicated and may require extensive knowledge of Georgia law and rules of evidence. In particular, you should speak with a lawyer if:

  • the mother is objecting to your legitimation petition
  • someone other than the mother currently has physical custody or guardianship of the child
  • the mother was married to another man when the child was conceived or born
  • the mother named another man as the father on the child's birth certificate, or
  • another man claims to be the child's biological or legal father.

An experienced Georgia family law attorney will understand all of the legal procedures and can help you gather the kind of evidence you'll need to convince a judge that you should be your child's legitimate father, and that it would be in your child's best interests for you to have the parenting time and other rights you're requesting.

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