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Paternity and Legitimation for Children Born Out of Wedlock

A child’s biological father doesn’t automatically have custodial/parenting time/visitation rights in Georgia if the child is born out of wedlock. If a child is born in Georgia when its parents are not married, an alleged father must first establish paternity and complete a process known as legitimation to become eligible for such rights.

Under Georgia law, “Only the mother of a child born out of wedlock is entitled to custody of the child, unless the father legitimates the child.” If a child is born out of wedlock and the alleged “biological father” wishes to pursue custodial/visitation rights, they must:

  • Establish paternity (to be recognized as the “biological father”), and
  • Complete the legitimation process in order to become the “legal father” (further down, this overview will explain how a father might do so)

Atlanta, Georgia paternity and legitimation attorney Traci A. Weiss is thoroughly familiar with the details of this process. She has the experience necessary to assist you if you’re a father whose child was born out of wedlock.

The following are common ways for the alleged biological father of a child born out of wedlock to establish paternity in Georgia:

  • Voluntary Paternity Acknowledgment: If both the alleged father and the mother agree on the paternity of the child, they can sign a Voluntary Paternity Acknowledgment form, which is available at the hospital where the child was born, the local health department, or the Division of Child Support Services.  Note that the voluntary acknowledgment could be rescinded within 60 days of the acknowledgement.
  • Paternity Petition: The alleged father can file a paternity petition in the Superior Court of the county where the child lives, or where the alleged father lives. The court will then order genetic testing to determine whether he is the biological father of the child.

The alleged biological father of a child born out of wedlock isn’t the only party who can petition to establish paternity of a child. Other parties who may do so include:

  • The child
  • The child’s mother
  • A relative caring for the child
  • In some circumstances, the Department of Human Services

There are various reasons someone other than an alleged father may petition to establish paternity of a child. For instance, in the event the mother, the child, or the child’s caregiver wants the Court to order the father to pay child support, then they must establish the father’s paternity of the child.  Once paternity is established, then child support may be ordered.

In order to secure custodial/visitation rights, the father of a child born out of wedlock in Georgia must complete the legitimation process. This ensures the law legally recognizes the relationship between a father and their child.

One way to complete the legitimation process is for a father to simply marry the child’s mother and formally recognize the child as theirs. If this is not an option, a father can file a petition to legitimate their child. When filing a petition, the alleged father may also state they wish to be granted some form of custody/visitation rights/parenting time.

A legitimation petition may be filed in:

  • The county in which the child’s mother or legal guardian resides
  • The county in which the father resides or the child resides, if the child’s mother or legal guardian currently resides out of state or cannot be found in Georgia

Additionally, if a deprivation proceeding is currently pending, a legitimation petition may be filed in the juvenile court of the county where the proceeding is taking place. If an adoption petition for the child has been filed and their adoption is still pending, a legitimation petition must be filed in the same county in which the adoption petition was filed.

The legitimation petition must include the following information:

  • The child’s full name, age, and sex
  • The mother’s name
  • The new name of the child, if the father wishes for their name to be changed

Be aware, if a mother is alive when a legitimation petition is filed in Georgia, the petition must name her as a party. This ensures she will have an opportunity to be heard if she wishes to contest the legitimation on the grounds that the individual filing the petition isn’t the child’s biological father. If there is still a question regarding whether the individual who filed a legitimation petition is the child’s biological father because paternity has yet to be established, the court may order genetic testing.

Once the alleged father presents and files the petition, ideally, the court will declare an order of legitimation. This doesn’t automatically mean the father has custodial/visitation rights. It simply means the court officially acknowledges the father is the legal biological father of the child. Thus, their child may inherit from them, and they may inherit from their child. The court must issue a separate determination of custody or visitation for a father to receive custodial/visitation rights.

The process of establishing paternity and filing a legitimation petition when a child is born out of wedlock in Georgia can seem overwhelming or complex if you lack experience addressing these matters. That doesn’t need to be the case.

In these circumstances, strongly consider enlisting the services of a legal professional who can help you navigate the process. A skilled paternity and legitimation attorney in Atlanta, GA can guide you through every step and answer all your questions, helping you pursue your rights as a child’s father.

Attorney Traci A. Weiss of Weiss Family Law is prepared to leverage her decades of experience to assist you. For more information, contact our firm online or call us at 770-727-0533.

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