Paternity & Legitimation

Our Georgia law firm is a boutique law practice focused on helping healthcare providers, professionals, businesspersons, and their family members protect their interests and peace-of-mind, including the safety of their children, their financial assets, and their family's general well-being.

Legal v. Biological Father

In Georgia, there are two categories of parents: (a) biological parents; and (b) legal parents. While many of the obligations imposed upon the two categories are similar, the rights bestowed upon each group are very different. A biological parent is roughly defined as a parent who contributed part of the child's genetic material or who otherwise conceived or sired the child; they have no natural rights to the children, but are obligated to provide support for the child. A legal parent, on the other hand, is a parent who has legal rights to the child, including the right to custody of and/or visitation with the child as well as parental authority over the minor child. Except in certain situations relating to adoption, artificial insemination, and/or termination of parental rights, every biological mother is automatically considered a legal mother to her children. Not every biological father, however, is considered a legal father to his biological children. For example, where children are born “in wedlock” (i.e., a parent whose parents were married when that child was born or who whose parents subsequently intermarry, and who was not born of adulterous intercourse), their biological father is automatically considered their legitimate legal father. For children born “out of wedlock” (i.e., a child whose parents were not married when that child was born and who did not subsequently intermarry and/or are born of adulterous intercourse of the mother during her marriage), however, their biological mother is automatically considered their legal mother, but their biological father is not considered their legal father until he formally legitimates them.

Paternity v. Legitimation

In addition to understanding the distinction between a biological father and a legal father, it is also important to understand the differences between paternity and legitimation. “Paternity” is simply the determination that an alleged father is indeed the biological father of a specified child. Generally, upon the determination of a father's paternity of a minor child (whether said determination is made voluntarily by the mother and alleged father, or involuntarily by a court order), that father is deemed the biological father of the child and is thereafter legally obligated to provide child support for that child's maintenance, protection, and/or education. The determination of paternity alone, however, does not entitle the biological father to any rights to their biological child, however, such as rights regarding custody of and/or visitation with the child or other parental authority over the child. Conversely, “Legitimation” is the determination that a child is the lawful offspring of an individual who is entitled to inherit from that individual (and vice versa) and that said individual has rights to and parental authority over the child (including custody, visitation and rights to make decisions affecting or otherwise relating to the child). Legitimation may also include changing the child's last name to match the father's last name.

Benefits Gained and Responsibilities Imposed by Paternity/Legitimation

Generally, until a biological father has legitimated a minor child, the biological mother is the only person entitled to custody of the child and/or to exercise any parental power over the child. Unless a court determines otherwise, however, each and every legal and/or biological parent has a legal duty/obligation to provide for the maintenance, protection, and education of his or her child (e.g., child support) until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs, regardless of whether the parent has legal rights to the minor child. Only a legal parent who has custody of a minor child (i.e., a mother whose parental rights have not been terminated and/or a father who has legitimated the minor child), is entitled to have control over the minor child's life and/or receive the benefits of the child's services and the proceeds of the child's labor. Accordingly, a biological father of a minor child who has admitted paternity (or where paternity has been determined by a court) but not yet legitimated said minor child (and thus has not yet become the minor child's legal father), will be required to pay child support for the benefit of the child without having any rights to visit, communicate, or otherwise control the minor child. Once the biological father legitimates the child, however, he will have rights to and parental authority over said child, including legal custody, physical custody, and/or visitation with the child. Moreover, only a father that has legitimated a child will have the right to inherit from the child (and/or for the minor child to inherit from the father), to pursue legal actions on behalf of the child, or to seek to have the child's last name changed to match his own.

The Paternity/Legitimation Process

Paternity and/or legitimation may be accomplished administratively. To establish paternity administratively, a father may give his written consent to have his name and/or social security number appear on the child's birth certificate or otherwise or may sign a “Voluntary Acknowledgment of Paternity” and have the same recorded in Georgia's Office of Vital Records' Putative Father Registry. To establish legitimation administratively, a father and mother must, prior to the minor child's first birthday, execute a “Voluntary Acknowledgment of Paternity” as well as a “Voluntary Acknowledgment of Legitimacy” and record the same with the Georgia Office of Vital Records. Note that if paternity and/or legitimation is accomplished administratively, a court action must still be initiated to determine the parents' respective rights and obligations with regards to the minor child(ren), including but not limited to child support obligations as well as custody/visitation rights. A father and/or mother that contests paternity/legitimation may file a legal action to contest an administrative determination of paternity/legitimation, although there are strict requirements that must be followed to accomplish the same.

If paternity or legitimation is not (and/or cannot) be determined administratively, paternity and legitimation may be accomplished by court action. A paternity and/or legitimation action may be brought at any time, and may even be initiated prior to the birth of the child that is the subject of said action. A paternity action is typically initiated to establish the alleged father's obligation to to pay child support to the child's mother (or other legal custodian) for the benefit of the child, while a legitimation action is typically initiated to determine the alleged father's rights to and parental authority over the child. A court action to determine paternity is typically initiated by the mother against the child's alleged father, but such an action may also be brought by the child itself and/or the Georgia Department of Human Services if the mother receives public assistance. Note that while a determination of legitimation inherently includes a determination of paternity, a determination of paternity does not necessarily include a determination of legitimation; an alleged father, however, may file a counterclaim for legitimation in any paternity action brought against him.

Generally, a paternity action must be brought in the Superior Court of the Georgia county in which the alleged father resides, although it may be brought in the Superior Court of the county in which the child resides if the father is not a resident of Georgia. A legitimation action, on the other hand, is initiated by the alleged father against the child's mother, and generally must be brought in the Superior Court of the Georgia county where the child's mother (or other legal custodian) resides; if the mother or other legal custodian resides outside of Georgia, or cannot, after reasonable search, be found within Georgia, the legitimation petition may be filed in the Georgia county where the father resides. Once the paternity/legitimation action is initiated, any party thereto may request that the court compel the mother, the alleged father, and the subject child to submit to genetic tests to determine the child's parentage; while the results of these genetic tests may be rebutted with sufficient evidence, they are generally presumed conclusive. Once parentage is confirmed via genetic testing and depending on the type of action originally filed, the Court may then enter further orders regarding the parents' respective child support obligations and custody/visitation rights to the child(ren) like in any other custody/child support action.

Attorney's Fees and Costs in Paternity/Legitimation Actions

There are a variety of ways that parties may be held liable for attorney's fees and/or other costs of litigation associated with a paternity/legitimation action. For example, pursuant to Georgia law, a Court may apportion among the parties as it sees fit any and all costs of litigation related to a Paternity/Legitimation action, including but not limited to the parties' respective attorney's fees, any expert witness expenses, guardian ad litem expenses, and any other costs of the action and pretrial proceedings, including blood and other genetic tests. As such, the Court is given ultimate discretion to assess any and all expenses associated with the court action against any party in any amount as it deems fit. As well, where a party continues to contests paternity after a genetic test has confirmed paternity, the party continuing to contest paternity (whether it is the mother, the alleged father, the child, or a third party who contests the alleged father's paternity) may be required to bear any and all costs associated with the continued contesting of paternity (such as additional genetic testing and/or expert witness expenses). As such, regardless of whether you are seeking to determine and/or contest paternity/legitimation, it is critical that you have an experienced family law attorney who can advise you as to the best manner in which to prosecute/defend your action so as to entitle you to an a favorable award from the court as it relates to not only paternity, legitimation, custody, visitation, and child support, but also as it relates to the apportionment of attorney's fees and costs of litigation associated with the same.

Atlanta and Augusta Family Law Firm for Healthcare Providers and their Family Members

Hamil Little’s attorneys have extensive experience in family law and domestic relations actions in Georgia's courts and otherwise guiding and assisting healthcare providers, professionals, businesspersons, and/or their family members in avoiding legal pitfalls associated with their personal lives, relationships, and family. Our law firm has offices in Atlanta and Augusta, Georgia. Contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta) to schedule a confidential consultation.