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