June 21, 2013

Can my son's father stop me from moving out of state with our son?

The answer to this question depends on whether the father has ever legitimated the child. If the father has legitimated the child, custody and visitation rights (which would include the ability to move out of state with the child), will be governed by the Parenting Plan which would have been entered in the legitimation action.

If, however, the father has not legitimated the child, he has no rights whatsoever and there is nothing legally preventing you from leaving the state. The only way he can “legally” stop you from leaving on a short-term basis is by filing a legitimation action. Upon filing, you will be served with a standing order that states that neither party can leave the state with the minor child until further order of the court or agreement of the parties. If you are served with this notice, you can still go to the Court to ask for permission to leave the state on a temporary basis, pending the outcome of the legitimation action. It should be noted, however, that depending on the outcome of the legitimation action, you and the child might not be permitted to leave permanently.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

April 26, 2013

Name change for child after Georgia legitimation?

An issue that periodically comes up in Georgia family law cases is a potential name change for a child affected by the action. Whether a divorce action where the mother is returning to her maiden name, or a legitimation action where the new legal father wants the child to have his last name, changing the last name of a child can be an issue to be decided in the case. The Court of Appeals of Georgia recently heard a case where a father sought to change the name of his child through his legitimation petition. Riggins v. Stirgus, A12A2512 (2013). In that case, the trial court granted the name change after hearing evidence of the father’s close relationship with the child, and the father testified that the name change would strengthen the father’s bond with the child and ensure that the child bonded with the father’s relatives. Id. at 3. In addition, the mother had remarried and taken her new husband’s name; thus, she no longer had the same last name as the child. Id.

Although the mother appealed, arguing that there was insufficient evidence showing that the name change was in the child’s best interest, the Court of Appeals affirmed the ruling. The Court held that the child’s best interest was considered, and seemed particularly moved by the fact that the mother and child no longer shared the same last name. Id. at 4.

Although the name change in this case was affirmed, it is important to note that a party must prove that the name change is in the child’s best interests. OCGA §19-7-22. Both parties can present evidence as to how the name change would impact the child’s interests and the court will make a decision accordingly.

April 8, 2013

My child’s mother left the state and left my child with her mother (the child’s grandmother). I am not allowed visitation. What can I do?

In this situation, the father should immediately file for Legitimation in the county of the residence of the child, and get an initial determination of custodial rights and parenting times. In Georgia, a father who is not married to the mother at the time of the child’s birth has no rights to the child unless and until he legitimates the child. O.C.G.A. § 19-7-25. This includes custody, visitation, and the right to make any decisions concerning the child.

When the legitimation case is resolved (whether by settlement or a trial), assuming the legitimation is granted, there will be a Parenting Plan that sets forth each party’s respective parenting times with the child. It will also set forth how major decisions about the child will be made. Until there is a Court Order, however, there is not much that can be done to force the situation. With a Court Order, however, I have seen the police enforce Parenting Plans, which could help with the situation described herein.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

December 10, 2012

Fathers' Rights and Legitimation in Georgia

What is legitimation?

Legitimation is the process that a biological father may undertake to legally establish a relationship with his child. It is only necessary for a father to legitimate his children if he and the mother of his child were never married to each other. The purpose of Georgia’s legitimation and paternity laws are to provide a way for fathers to establish paternity and thus legal relationships with their children. Ghrist v. Fricks, 219 Ga.App. 415 (1995).

If both mother and father agree and consent to the legitimation, both parents may voluntarily acknowledge legitimation by completing an Acknowledgement of legitimation. O.C.G.A. § 19-7-21.1. In order for legitimation by acknowledgement to be effective, the parents must complete the acknowledgement prior to the child’s first birthday. Id.

If both parents do not agree to legitimation, or if the father is unsure whether the mother may consent, the father may submit a petition for legitimation to the court in the county where the mother resides. O.C.G.A. § 19-7-23(a). Once a father files this petition, the legitimation proceeding will be initiated, and a court will hear evidence by both parties to determine whether legitimation is appropriate. A court evaluates whether legitimation is appropriate by determining whether the father may be a fit parent or whether legitimation will be in the best interest of the child involved. See In re Baby Girl Eason, 257 Ga. 292 (1987).

Why is it important?

Prior to legitimation of a child born out of wedlock, the mother is entitled to custody and she may exercise all parental power over the child. O.C.G.A. § 19-7-25. Essentially, before a father legitimates his child, he has no legally recognized connection with the child, and he may not legally make decisions on behalf of the child or exercise custody. But, in his petition for legitimation, a father may include claims for visitation, parenting time or child custody. If a father chooses to assert these claims, the court presiding over the matter may grant the father these rights upon a finding that legitimation is appropriate. See O.C.G.A. §19-7-22. Legitimation is also important because prior to legitimation, a child has no legal right to inherit from her father, and her father has no legal right to inherit from her. See O.C.G.A. § 19-7-22(c).

Not only is it important for a father to seek legitimation of his child, it is important that he do so in a timely manner. If a father delays in legitimating his child, and a court determines that this delay was unreasonable, a court may find that that father has abandoned his opportunity to develop a relationship with the child. If a court makes this finding, it may deny the father’s petition for legitimation. In some circumstances a delay of over a year may be deemed by a court as unreasonable. In re Baby Girl Eason, 257 Ga. 292 (1987). In the Interest of J.L.E., 281 Ga.App. 805 (2006).

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

June 25, 2012

Frequently Asked Questions: Georgia Legitimation

Question: I was not married to my child’s mother and have no court order regarding custodial rights. The mother is currently in jail. Can I get my child without going to court?

Answer: In Georgia, in this situation, until the father goes to court and legitimates the child, he has no legal or custodial rights to the child. The father must obtain a Legitimization Order before he can do anything legally.

Question: What can I do to get sole custody of my child when I never married the father, but his name is on the birth certificate?

Answer: In Georgia, until the father legitimates the minor child, he has no legal or custodial rights. Thus, in this situation, the mother currently has sole custody of the child.

June 8, 2012

The relationship between legitimation and grandparent visitation in Georgia

In Georgia, grandparents have very limited rights. I was recently asked about visitation for the paternal grandparents in a situation where the parents of the child (who never married) are refusing access to the child.

In this situation, the grandparent’s rights depend partly on whether the father has legitimated the minor child. Without a Court order granting legitimation, the father has no rights, which arguably means the paternal grandparents have no rights. Unfortunately, with this set of facts, there does not seem to be a valid claim for visitation.

February 17, 2012

Legitimation and due process in Georgia

The Georgia Court of Appeals recently affirmed the grant of a petition for legitimation over the mother’s appeal. Murray v. Hooks, A11A1824 (2012). In that case, the father filed a petition for legitimation and was awarded temporary custody due to the mother’s incarceration. Id. at 1-2. A few months later, after a hearing that the mother failed to attend, the trial court entered a final order of legitimation and awarded custody to the father. Id. The trial court subsequently granted the mother’s motion to vacate the final order and scheduled a bench trial in the case. Both parties appeared at the trial where the trial court awarded joint legal custody, with primary custody to the father and visitation to the mother. Id.

The mother appealed, alleging “the trial court erred in its custody award and violated her due process rights by failing to provide her an adequate opportunity to be heard.” Id. at 1. The Georgia Court of Appeals affirmed, noting that the mother received adequate notice of the trial and the trial court’s final order indicated that she attended the trial. Id. at 3. Though there was no transcript included in the record, the Court noted that“[i]n the absence of a transcript, we must assume the trial court’s findings were supported by evidence presented, and the actions taken by the trial court during the hearing were appropriate.” Id. at 3, citations and punctuation omitted. The Court further pointed out that there were no due process violations based on the court’s prior hearings held in the mother’s absence because the original final order was vacated and the temporary order was replaced by the order coming from the trial, which she did attend. Id. at 3-4.

January 30, 2012

Termination of parental rights in Georgia when father is not on birth certificate

As a Georgia family law attorney, I was recently asked how parental rights could be terminated for a father who is not on the child’s birth certificate. Generally, if you are not married and the father is not on the birth certificate, the father has no rights in Georgia so there is nothing to terminate. In a situation such as this, the father has to file a Legitimation action and ask a Court to grant him rights. If you object to the father being granted any parental rights, it would be at this point where you would contest the granting of the Legitimation.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

November 28, 2011

Legitimation and abandonment in Georgia

The Georgia Court of Appeals recently heard an appeal of the grant of a legitimation petition, where the father was absent during the majority of the pregnancy, but in the child’s life from the moment he was born. Caldwell v. Meadows, A11A1031 (2011). In that case, the parties had a short relationship and then had virtually no contact during the pregnancy. Id. at 3. Toward the end of the pregnancy, the parties reconnected and even went shopping together for the baby. Id. The father visited the child in the hospital after he was born, and the mother and child moved in with the father for several days after coming home from the hospital. Id. at 4. After the mother moved to Georgia with the child, the father voluntarily paid child support, provided health insurance, and visited the child 22 times over two years. Id. at 4. After being asked by the mother’s attorney not to contact the child anymore, the father filed a petition for legitimation, which was granted by the trial court, along with joint legal custody and visitation for the father. Id. at 1 and 4.

The mother appealed, asserting that the trial court erred in excluding the issue of the father’s abandonment during the pregnancy. Id. at 1. The Georgia Court of Appeals disagreed, holding that “[w]hile a father’s lack of involvement prior to a child’s birth ‘is as significant as such a disregard after the child is born,’ we are aware of no authority limiting a trial court’s inquiry into whether a father has abandoned his opportunity interest to the period before the child’s birth especially where, as here, the father evinced such a clear intent to be involved in his child’s life following his birth.” Id. at 6-7; quoting Turner v. Wright, 217 Ga. App. 368, 369 (1995). The question in considering whether the father had legally abandoned his child is not whether “the father could have done more,” but rather whether the father “has done so little as to constitute abandonment.” Id. at 7; quoting Binns v. Fairnot, 292 Ga .App. 336 (2008). In this case, this father was more involved than many out of town parents in his child’s life. Thus, there was clearly no abandonment.

August 5, 2011

Filing of transcript can be determinative in Georgia appeals

The Court of Appeals of Georgia recently heard a legitimation case that highlights the importance of including a hearing transcript with the appeal in Georgia. Charlot v. Goldwire, A11A0684 (2011). In that case, the trial court granted the father’s petition, awarding the father joint physical and legal custody of the one year old child with the mother designated as the primary physical custodian. Id. at 2. In addition, the trial court ordered the father to pay child support in accordance with the parties’ respective incomes and the child support worksheet, and awarded attorney’s fees to the mother. Id.

The father appealed the custody/visitation determination, the child support amount, and the award of attorney fees. The Court of Appeals of Georgia quickly dismissed the father’s arguments as to custody/visitation and child support, as there were no hearing transcripts included with the appeal that would detail what happened at the hearings. (Child support worksheets were included.) Id. at 3. Therefore, the Court of Appeals had to assume that the evidence was sufficient to support the trial court’s findings.

The lack of a transcript helped the father on the attorney fees issue, however, as the award was vacated. According to Georgia law, a court is authorized to award attorney fees in cases involving paternity, but the fees must be supported by statute of contract. Id. at 5; OCGA §19-7-50. In this case, “the trial court failed to identify in its order assessing attorney fees the basis on which the fees were granted,” and there is no transcript of the hearing to support the reason behind the attorney fees award. Charlot, at 6. The Court of Appeals held: “Where the record does not contain the basis for the award in either the order awarding attorney fees, or a transcript of the attorney fees hearing, we are unable to properly review the claim, and the attorney fees award can not be sustained.” Id.