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.

May 27, 2011

Father's sister has no right to court ordered visitation in Georgia child custody case

The Georgia Court of Appeals recently reaffirmed long standing law in limiting court ordered visitation to parents and grandparents. Morris v. Morris, A11A0013 (2011). In that legitimation case, the biological mother appealed the legitimation order, not because the trial court granted the legitimation petition, but because the trial court granted visitation rights to the father’s sister. Id.

After the father testified that he wanted his sister “to be available to help him with child visits but not to replace him on the visitations,” the trial court awarded visitation to the father “and/or [the father’s sister],” over the mother’s objection. Id. This essentially amounted to the possibility of separate visitation for the father’s sister since, according to the wording of the order, the father was not required to be there.

The Georgia Court of Appeals agreed with the mother that it was error for the trial court to grant these visitation rights. (Interestingly, the father conceded that the trial court erred in this regard.) Id. at 2. Generally, “[t]he right to determine whom the child shall visit and associate with, and when, where, and how often these visits and associations shall take place, is an inseparable and inalienable ingredient of the right of a parent to custody and control of a minor child.” Id. at 2-3. According to Georgia law, only grandparents have the right to sue and obtain for visitation rights. OCGA §19-7-3(c). Though certain other family members may seek custody (OCGA §19-7-1(b.1)), the father’s sister was not doing so. Therefore, since no Georgia law exists to award visitation in this circumstance, the order awarding visitation rights to the father’s sister was vacated.

April 29, 2011

Requirements for Petition for Legitimation in Georgia

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.” Thus, the mother is the only parent with “parental control” over the child. OCGA §19-7-25. In situations such as this, the father may desire to render his relationship with the child legitimate or legal. To do so, the father must file a petition for legitimation in the county of residence of the child’s mother (or other party having custody or guardianship of the child). OCGA §19-7-22(a). If the mother resides outside of Georgia, or cannot be found in Georgia, the petition should be filed in the county of the father’s residence. Id. The petition must include “the name, age, and sex of the child, the name of the mother, and, if the father desires the name of the child to be changed, the new name.” OCGA §19-7-22(b). The mother must be named as a party and must be served with the petition so that she may have the opportunity to contest the legitimation if she chooses to do so. Id. For example, the mother may present evidence that the father is not the child’s biological father, or may present evidence that he is an unfit parent and the legitimation would not be in the child’s best interest.

Petitions for legitimation may also include claims for visitation, parenting time, and/or custody, which the court may order based upon the best interests of the child standard. OCGA §19-7-22(f.1). In addition, it is important to keep in mind that if the legitimation petition is granted, the court is required to establish a duty of the father to support the child in accordance with the Georgia child support guidelines. OCGA §19-7-22(e).

April 4, 2011

Voluntary Acknowledgment of Paternity in Georgia

The Georgia Court of Appeals recently heard a case regarding the implications of a signed voluntary acknowledgment of paternity. Venable v. Parker, A10A1617 (2011). In that case, shortly after the child was born, the parties signed a voluntary acknowledgement of paternity stating that Parker was the biological father. In accordance with Georgia law, the acknowledgment “expressly stated that Parker could rescind his acknowledgment within 60 days of his signature on the form, or up to the date of an order establishing paternity, whichever occurred first.” Id. at 2; OCGA §19-7-46.1(b). If he did not rescind within this time period, the acknowledgement would “constitute a legal determination of paternity” and Parker would “have given up [his] rights to DNA testing.” Id. at 2. Parker did not seek rescission and the trial court signed a Final Order incorporating the terms of the parties’ settlement on paternity and child support. Id. at 3.

Shortly thereafter, Parker moved to set aside the paternity acknowledgment and Final Order based upon fraud, alleging that he had recently learned that he may not be the child’s biological father. Id. at 4. Following a hearing in which Parker’s testimony was contradictory, the trial court denied Parker’s motion, but held that it would be in the best interests of the child to require the parties to undergo genetic testing. Id. at 5-6.

Venable appealed, arguing that “the trial court lacked authority to order genetic testing” since the motion to set aside the paternity acknowledgment was denied. Id. at 6. The Georgia Court of Appeals agreed, holding that "[u]nder Georgia law, genetic testing can only be ordered in cases ‘in which the paternity of a child or children has not been established.’” Id.; OCGA §19-7-43(d). In this case, the Final Order, which legally established paternity based upon the paternity acknowledgment, was not appealed nor modified. Id. at 7. Thus, paternity had already been established, and genetic testing was not authorized.

November 22, 2010

Rights of legal father in legitimation action

The Georgia Court of Appeals recently addressed the rights of a legal father in a legitimation action brought by the child’s biological father. In Baker v. Lankford, the wife gave birth to a child during her marriage to the husband. Baker v. Lankford, A10A1211 (2010). The husband believed the child was his biological child, and was listed as the father on the child’s birth certificate, only to later find out that he was not the biological father. Id. He filed for divorce and, while the divorce was pending, the biological father filed a petition for legitimation, custody and visitation, to which the wife/mother consented. Id. at 2. Shortly thereafter, the husband/legal father moved to intervene in the legitimation proceeding. A few days later, while the motion was still pending, the trial court granted the legitimation petition and then denied the motion to intervene. Id. at 3.

On appeal, the Georgia Court of Appeals agreed that the trial court erred in denying the husband/legal father’s motion to intervene. The Court of Appeals found that the husband/legal father had an interest in the legitimation proceeding, as he was the child’s legal father (the child being born during the marriage) and, thereby had parental and custodial rights to the child. Id. at 4. In addition, the Court found that his interest as the child’s father “would be impaired by a decision of the trial court that was unfavorable to him, and his interest was not adequately represented by the parties to the action,” especially in light of the wife’s consent to the action. Id. at 6.

The Court held that “[w]here intervention appears before final judgment, where the rights of the intervening party have not been protected, and where the denial of intervention would dispose of the intervening party's cause of action, intervention should be allowed and the failure to do so amounts to an abuse of discretion.” Id. at 7. The Court, therefore, reversed the denial of the motion to intervene and vacated the judgment on the legitimation petition.

July 29, 2010

Can the paternity of a child born during a marriage be challenged?

Paternity testing during a divorce case is not extremely common, but this issue does arise. The Georgia Court of Appeals recently affirmed a trial court’s denial of a mother’s motion to compel paternity testing of her husband. Williamson v. Williamson, 302 Ga. App. 115 (2010). In that divorce case, the wife alleged that the child born during the marriage might not be the biological child of the father and requested paternity testing. Id. at 116. After a temporary hearing in which the parties were awarded joint legal custody, the wife’s attorney sent a letter to the husband’s attorney confirming the parties’ agreement that paternity was no longer an issue. Id. Subsequently, the wife retained a new attorney and filed a motion requesting a paternity test, which the husband opposed. Id. The child’s guardian ad litem testified that a paternity test would not be in the child’s best interest and the court denied the wife’s motion. Id.

In her appeal, the wife alleges “she is not precluded from contesting paternity.” Id. The Georgia Court of Appeals agreed with her, stating neither the purported agreement nor the temporary order determined the issue on a final basis as there was not yet a final order in the case. Id. at 177.

However, even the Georgia Court of Appeals held that the wife had the right to contest paternity, it agreed with the trial court’s denial of her motion, which was based on the “best interest of the child” standard. Id. The wife had a huge hurdle to overcome since “[a]ll children born in wedlock are deemed under law to be legitimate.” Id. Further, “[t]he public policy favoring the presumption of a child’s legitimacy is one of the most firmly-established and persuasive precepts known in law.” Id., quoting Baker v. Baker, 376 Ga. 778, 779 (1) (582 SE2d 102) (2003). In affirming the denial of the wife’s motion to compel paternity testing, the Court of Appeals followed established Georgia law and held, “…even when the child's legal father may not be the biological father, a mother who wishes to delegitimate her child is not automatically entitled to compel the legal father to submit to genetic paternity testing but must first come forward with evidence sufficient to show that delegitimating the child is in the child's best interest. The record in this case contains no such threshold showing.” Williamson, 302 Ga. App. at 118.

July 2, 2009

Child Support and Paternity

As technology changes our world, it also changes our Child Support and Paternity laws here in Georgia. Typically, in a parent cannot waive their right to receive child support, nor can another be released from their obligation to pay child support in Georgia. Worthington v. Worthington , 250 Ga. 730, 731 (1) (301 SE2d 44) (1983); Dept. of Human Resources v. Mitchell , 232 Ga. App. 215, 216-217 (1) (501 SE2d 508) (1998). But, artificial insemination has created an exception to that law. The Supreme Court of Georgia has ruled that, in Georgia, biological paternity does not create a responsibility to provide support in cases of artificial insemination. Pruitt v. Lindsey, 261 Ga. 540, 541 (2), n. 2 (407 SE2d 750) (1991).

This issue was taken up again in Brown v. Gadson, 288 Ga. App. 323 (654 SE2d 179) (2007), and the Court of Appeals affirmed that artificial insemination does not create a responsibility to provide support, especially when the mother and sperm donor enter an agreement. This case had a slight twist because the agreement was made in Florida, and under Florida law, these agreements are valid and enforceable. Fla. Stat. § 742.14; see also Lamaritata v. Lucas, 823 S2d 316, 319 (Fla. App. 2002) (holding under the foregoing statute that “[a] person who provides sperm for a woman to conceive a child by artificial insemination is not a parent”).

November 28, 2008

Legitimation in Georgia

In Georgia, legitimation is the legal process that an unwed father takes to become the legal father of his child born out of wedlock (O.C.G.A. §19-7-22). More simply, a child born to a father that is not married to the mother is not considered the child’s legal father until he files for legitimation. This is true even when the father’s name is on the child’s birth certificate and/or the child has the father’s last name. This is often surprising to many people because a father’s custody rights are very different from state to state. We have had many calls from distressed fathers who have been very involved in their child’s life and find that one day the mother will not allow him to see the child without a Court Order. A father must legitimate to have visitation or custody, even if he has been paying child support. The good news is that in most cases in the Atlanta metro area (Fulton, Cobb, DeKalb, Gwinnett, Forsyth and Cherokee), the Court will grant the legitimation and set up visitation as part of the process.

A common question is whether the Mother can contest the legitimation or custody. The mother can contest the legitimation, but she must provide evidence that he is not the biological father or that the father is unfit. While the general definition of an unfit parent may be different depending on who you ask, the Court considers a father to be unfit in more extreme circumstances (for example, if he has been convicted of a sexual molestation or battery or has a proven drug addiction problem). The Court will usually give a father the chance to change his behavior and have a relationship with his child or children.

Most legitimation cases combine visitation and child support into one if there has not already been a child support order set up. Generally, we ask for joint legal custody and “standard visitation” time. You may have heard the term “standard visitation,” and in the Atlanta area, it generally means every other weekend (Friday evening through Sunday evening) with alternating holidays and two weeks of summer visitation. The alternating holidays mean that you may have a holiday this year and the other parent will have it next year. This is a starting point for most cases, and often if the parties cannot agree, it will be what a Judge rules.

As of 2007, the Court will use child support worksheets to determine the correct amount of child support. In general, the child support worksheets include both parents’ income, costs for health insurance, daycare, and extracurricular costs.