Atlanta Divorce Attorney Blog

In short, if you are unsure about the paternity of you purported child, you should definitely obtain a paternity test. Now, let’s talk more about why this is a good idea…

In Georgia, a father may seek to have the relationship between himself and his child by either voluntarily acknowledging paternity or by seeking to legitimate his child via legitimation petition. O.C.G.A. § 19-7-21.1; O.C.G.A. § 19-7-23(a). However, if you are unsure about the paternity of your purported child and you are not married to the mother of that child, it is important that you seek a paternity test prior to legally acknowledging paternity or initiating a legitimation action. This is necessary because in Georgia once you voluntarily acknowledge paternity or succeed in legally establishing paternity, you will only have 60 days in which to amend or withdraw this acknowledgement before the acknowledgement constitutes a legal determination that you are indeed the father of the child. In other words, if you acknowledge paternity of a child, and you later find that you are not the father of that child, you may nevertheless be legally considered the father and it may be very difficult, if not impossible, to rebut this legal determination. See O.C.G.A. § 19-7-46.1(b).

If you would like to have a paternity test in order to determine the true parentage of your purported child, but the child’s mother is uncooperative, you may file a petition to establish paternity in the court of the county where you reside. O.C.G.A. § 19-7-42. Once you have filed this action, you may petition the court for an order requiring the child’s mother to submit to the paternity test. Unless the opposing party shows good cause as to why the motion should be denied, a court will normally grant a motion requesting a paternity test. O.C.G.A. § 19-7-43(d).

If you and the child’s mother are able to agree that a paternity test is necessary, you may seek on privately without filing a paternity action. There are several genetic testing laboratories in Georgia that specialize in provide paternity testing. A basic genetic test for paternity may be obtained from some providers for as low as $79. However, the costs to obtain a genetic test that will produce results admissible in court are greater. It is necessary to obtain this more extensive form of testing if you plan to present the results in court or if you believe that presentation of the results in court may be necessary. The costs associated with obtaining this form of paternity testing range from $230 to $495.

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

At our Georgia family law firm, each case we hear has interesting and distinct facts. I recently came across a television show where a man was describing an interesting, and frustrating, situation surrounding a paternity case. Specifically, a man was going through a divorce and, at the end of the hearing, his ex-wife proclaimed that she was pregnant and he was the baby’s father, despite the fact that he had had a vasectomy and could not father any children.

After the baby was born and a paternity test performed by the ex-wife came back positive, the Judge awarded the ex-wife child support for the baby girl. After five years of the ex-husband never seeing his own child, the Judge demanded that the ex-wife bring the child to court. During the hearing in which the ex-wife brought the child, it was revealed that this was, in fact, someone else’s child, and the ex-wife had never even been pregnant and had fabricated the results of the paternity test. This man had been paying child support for five years for a child who never existed. In the end, the ex-wife went to jail and the testing facility settled out of Court for a large settlement with the ex-husband.

As a family law paralegal, I had many thoughts about this story. From a paralegal’s perspective, I asked “what could have resolved this situation in less time and with less money?” First, if the ex-husband had a vasectomy, there had to be medical records from the operation. Did he obtain certified copies to present at a hearing? Did the doctor who performed the vasectomy ever appear as a witness in Court? Was the doctor ever subpoenaed? Did the ex-husband have his own paternity test performed? Any of this evidence could have proven that he was not the father of the child and could have ended his child support obligation much sooner.

Also, did the ex-husband’s attorney send the ex-wife any discovery? If they sent Request for Production of Documents, his lawyer could have requested photos of the child, her birth certificate, any school records, and even any witnesses who knew of the situation with the child. This evidence could prove that the child in question did not exist. Again, this would have ended his child support obligation much sooner.

When you are involved in a complicated paternity action such as this one, it is important that you obtain any relevant evidence to prove your case. It could go a long way in proving that the child is not yours and, thus, you would not have to pay child support. Or, it may help you prove that the child is yours and, thus, you should be allowed visitation so you may have a relationship with him/her.

At Meriwether & Tharp, LLC, we handle all types of family law matters, including paternity and legitimation. If you have a paternity or legitimation action, please contact our office to schedule a consultation with one of our team of experienced family law attorneys.

By Amy Trice, Paralegal, Meriwether & Tharp, LLC

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.

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

While a petition for paternity is pending in Georgia, a party to the action (usually the mother or guardian of the child) may file a motion for a temporary order of child support. OCGA §19-7-46.2. If there is “clear and convincing evidence of paternity,” the temporary order is required to be issued in accordance with the child support guidelines, and will be valid pending a determination of parentage. OCGA §19-7-46.2(a).

Since there will have been no final determination of parentage at the time the temporary order is issued, the payments are not made to the child’s mother or guardian. Rather, any child support payments made pursuant to the order are made to the court, which deposits the money into a separate bank account to be held in escrow. OCGA §19-7-46.2(b). If there is a final judgment that the alleged father is the father of the child, the amount held in escrow “shall be paid to the appropriate person or entity along with any interest that may have accrued.” OCGA §19-7-46.2(c). The appropriate entity in this situation is likely the mother of the child. If there is a final judgment that the alleged father is not the father of the child, the amount in escrow “shall be returned to the putative father along with any interest that may have accrued.” OCGA §19-7-46.2(d).

Any relevant evidence may be introduced at a paternity hearingin Georgia, but there are specific rules regarding certain evidence, including the results of genetic testing. Specifically, the results of genetic testing “shall be admitted in evidence without the need for foundation testimony or other proof of authenticity or accuracy” so long as a party to the genetic test does not object in writing at least 30 days prior to the hearing. OCGA §19-7-46(a). If a party does object in writing within the required time frame, the evidence can still be admitted, but must be “offered by a duly qualified, licensed practicing physician, duly qualified immunologist, duly qualified geneticist, or other duly qualified person.” Id.

If a genetic test establishes at least a 97% probability of paternity, there is a rebuttable presumption of paternity. OCGA §19-7-46(b). A party can only overcome this presumption by offering clear and convincing evidence that the paternity test is incorrect. Id.

A few other items are specifically mentioned under Georgia law as admissible evidence in a paternity hearing:
(1) Evidence of a refusal to submit to genetic testing is admissible “to show that the alleged father is not precluded from being the father of the child.” OCGA 19-7-46(c).
(2) An expert’s opinion about the time of conception is admissible. OCGA §19-7-46(d).
(3) Testimony relating to sexual access to the mother by any person on or about the probable time of conception is admissible. OCGA §19-7-46(e).

Georgia law has several requirements for genetic testing performed in paternity cases:

(1) Tests must be conducted by a laboratory certified by the American Association of Blood Banks.
(2) Genetic testing must be done as soon as medically possible after the birth of the child (in cases where paternity action is initiated prior to the child’s birth).
(3) Tests must be performed by a duly qualified licensed practicing physician, duly qualified immunologist, or other qualified person (as determined by the court).
(4) The results shall be made to all interested parties as soon as available.

OCGA §19-7-45.

Types of paternity testing include, but are not limited to, “red cell antigen, human leucocyte antigen (HLA), red cell enzyme, and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA) probes.” OCGA §19-7-46(b).

In Georgia, a child born out of wedlock is considered the biological child of both his mother and father, but only the mother is immediately considered to be the “legal parent.” In situations such as this, the father may not be supporting the child at all, or an older child may wish to know with certainty the identity of his/her father. To remedy issues such as these, a party may file a petition to establish paternity. This petition may be brought by the child, the mother of the child, any relative in whose care the child has been placed, the Department of Human Services (if public assistance is received), or an alleged father. OCGA §19-7-43(a)(1-5). The petition may be brought before the child is born, but all proceedings except service of process, discovery and depositions must be stayed until after the birth. OCGA §19-7-43(c).

Any party to the paternity proceeding may move for genetic testing of the mother, alleged father, and the child or children. OCGA §19-7-43(d). The motion must be “supported by a sworn statement (1) alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties; or (2) denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties.” OCGA §19-7-43(d). The court is required to grant the motion unless if finds good cause, or good excuse for noncooperation. Id.

The specifics surrounding genetic testing will be discussed in more detail in a future blog.