Atlanta Divorce Attorney Blog

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.