It’s a stark reality: if parents aren’t married when a child is born, the father finds himself in a legal vacuum. Notwithstanding any child support arrangements, the father remains without rights to the child until a legitimation action is initiated.

Understanding legitimation actions

Legitimation is not automatic; it requires a deliberate legal process. Fathers should take proactive steps to legitimize their relationship with their child. This involves filing a legitimation action in court to establish paternity and secure parental rights legally.

Paternity rights encompass more than just legal recognition. They include the right to custody, parenting time and decision-making in the child’s life. Legitimation can serve as the gateway to unlocking these fundamental rights for fathers.

The legal process

Once informed of their rights, the father must file a legitimation petition in the appropriate court. This document formally requests the court to establish legal paternity. In many cases, courts may order DNA testing to conclusively determine paternity. This scientific evidence can strengthen the father’s case for legitimation.

The legitimation process involves court hearings, during which both parties present their case. The court evaluates the evidence and makes a decision on legal paternity. Upon successful legitimation, fathers may gain the right to seek custody and visitation. The court considers the child’s best interests when making these decisions.

Legitimation can also grants fathers the opportunity to seek the authority to participate in major decisions affecting the child’s life, such as education, healthcare and religious upbringing.

Legitimation is the cornerstone for fathers seeking to establish their legal rights when a child’s parents are unmarried. It’s a proactive step that not only legitimizes paternity but opens the door to a range of parental rights.

In many situations, one of the first steps to developing a co-parenting relationship is establishing paternity. While paternity may be a simple question for some, that is not always the case.

Here’s what you should know about establishing paternity in Georgia.

Legal marriage

Under Georgia law, when the child’s parents are legally married at the time of the birth, courts presume the husband is the child’s father. If this is not the case, you will need a court action to alter that presumption.

Court orders

You can also establish paternity with a court order through a local, state or federal court. In some cases, the court will request that the mother, father and child must submit a DNA paternity test.

Paternity Acknowledgement Form

The last way to establish paternity is by voluntarily signing a Paternity Acknowledgement Form. Often, these forms are available at the hospital when your child is born. Alternatively, you can go to the State Office of Vital Records in Atlanta or the Office of Vital Records in the county where the child was born.

What about legitimation?

While these options can establish paternity, or biologically who the father is, it does not necessarily establish a father’s right to bring an action for custody. Legitimation is a separate process that can give the father of a child born out of wedlock specific rights regarding custody and care of the child.

However, these scientific advancements have led to unprecedented challenges in the legal system. With Childbirth now disconnected from intercourse, questions arise as to the legal designation of paternity and the degree of responsibility each parent should take for a child.

Changing Precedent

In the recent case of Patton v. Vanterpool, the Georgia Supreme Court faced the issue of paternity for a divorced couple who have a child by way of IVF. The husband agreed in writing to the wife getting IVF treatment, which she did a mere four days before their divorce was finalized.

After giving birth to the child, the ex-wife filed a paternity action to have her ex-husband legally considered the father of the child, since he consented to the IVF procedure, and the pregnancy started before the divorce was finalized.

The lower court sided with the mother by ruling that the ex-husband should be legally considered the father. One of the key statues involved was 19-7-21, which reads:

“All children born within wedlock or within the usual period of gestation thereafter who have been conceived by means of artificial insemination are irrebuttably presumed legitimate if both spouses have consented in writing to the use and administration of artificial insemination.”

On appeal, the Georgia Supreme Court overturned the lower court’s ruling, determining that this statute refers to artificial insemination and does not explicitly refer to IVF.

What Does This Mean For Divorcing Parents?

This decision could have wide-ranging consequences for both mothers and fathers who have children from IVF procedures. Under a strict reading of this precedent, mothers in this situation cannot seek child support from their ex-husbands, and fathers will not be able to insist on custody rights.

Although the statute was drafted when artificial insemination was a regular procedure but IVF was not yet in regular practice, it is safe to assume that the legislature would have intended for IVF to be included in the statutory meaning and language. However, the Georgia Supreme Court read the text strictly, so this precedent should stand until the Georgia legislature re-writes the statute or adds another law covering IVF specifically.

In the meantime, couples using IVF should consult with experienced attorneys before using the procedure if possible – so they can know their rights and obligations going in – and certainly they should seek legal counsel when determining custody rights in divorce for any of their children conceived via IVF.

That said, a Georgia-related question or concern regarding any paternity-related issue should always be discussed with a Georgia family law attorney commanding extensive experience in legitimation and paternity matters.

A recent case involving a paternity dispute in New Jersey underscores the complexity in the area, as well as the emotions that often attach.

A court battle began in that state in 2006 and was just recently resolved through a ruling of the New Jersey Supreme Court. The facts are summarized as follows.

A man and woman had a child, now 28, during their marriage. The couple was divorced in 2006, and the man sought a paternity test, citing evidence that he was not the biological father. Two state courts denied the request, stating that a DNA test was not in the best interests of the offspring, then a 22-year-old man.

The state Supreme Court ruled otherwise last week, holding that any man in the state has a legal right to a DNA test if he can show a court evidence that there is a “reasonable possibility” that a child is not biologically his.

The “reasonable doubt” standard was applauded by the man’s attorney, who called it an “excellent” test for future cases.

The man seeks recovery of all the costs he expended in raising the boy over 20 years from the man he says is the biological father.

Source: The Star-Ledger, “Court: Parents can get genetic test from state when paternity is in doubt,” Salvador Rizzo, Oct. 10, 2012

Can the man I first told he was the father of my child demand paternity testing now that I told him it isn’t his child?

The Answer:

I am a Georgia licensed attorney so I am only able to answer your question according to Georgia law. That being said, the law in your state might be similar. The state that will have jurisdiction (the power to decide the issues in your case) will most likely be the court in the state and county where you reside with the children. So, if you lived Atlanta Georgia, he would be required to file a Legitimation action in the Superior Court of Fulton County Georgia. Once he had filed the Legitimation in the correct state and county the court would determine:

1. Is he the Biological father;
2. is it in the best interest of the child to have him declared the legitimate (legal) father;
3. is it in the best interest of the child for the father to have visitation and if so under what circumstances;
4. what the required child support payment should be.

In most cases, unless the father is a danger to the child or has been severely abusive, the court will almost always find that it is in the best interest of the child to have a legitimate father and that he should have visitation.

Can the man I first told he was the father of my child demand paternity testing now that I told him it isn’t his child?

The Answer:

I am a Georgia licensed attorney so I am only able to answer your question according to Georgia law. That being said, the law in your state might be similar. The state that will have jurisdiction (the power to decide the issues in your case) will most likely be the court in the state and county where you reside with the children. So, if you lived Atlanta Georgia, he would be required to file a Legitimation action in the Superior Court of Fulton County Georgia. Once he had filed the Legitimation in the correct state and county the court would determine:

1. Is he the Biological father;
2. is it in the best interest of the child to have him declared the legitimate (legal) father;
3. is it in the best interest of the child for the father to have visitation and if so under what circumstances;
4. what the required child support payment should be.

In most cases, unless the father is a danger to the child or has been severely abusive, the court will almost always find that it is in the best interest of the child to have a legitimate father and that he should have visitation.