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.
Under Georgia law, a child is born out of wedlock if:
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).)
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:
(Ga. Code §§ 19-7-20(c), 19-7-22 (2022).)
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).)
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.
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.
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).
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.
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:
You'll need to submit the settlement agreement to the court for approval, along with other relevant documents such as your parenting plan.
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.
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:
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).)
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.
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.
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:
(Ga. Code § 19-7-22 (2022).)
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:
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.