Atlanta Divorce Attorney Blog

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”).

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.