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I’m Divorcing, But What If “My Child” Isn’t Mine?

Thursday, January 28th, 2016

In Georgia, a man married to a woman at the time she conceives or gives birth to a child is presumed to be the biological father of that child, and will be deemed the legal father of that child upon divorce. As a result, that man will be liable for child support. But, what if he is not the biological father of that child? If you are a man currently considering or going through a divorce in Georgia, and you have concerns that your child really isn’t yours, you may be concerned that you will be left paying child support for someone else’s child post-divorce. Although it is difficult to defeat the presumption that you are the father of children born during your marriage, it is possible.

If you have concerns that your child isn’t really yours, it is imperative that you address this during the divorce process, not afterwards. In fact, the sooner you inject this issue into the divorce, the better. So, in your Complaint for Divorce, or in your Answer to your wife’s divorce complaint, state that you believe the child born during your marriage is not your biological child, and ask the court to order a DNA test. Even though it is possible for you and your soon to be ex-wife to agree that the child is not your biological child, seeking a DNA test is the best way to have conclusive evidence in case the issue is disputed later.

Once a DNA test has been conducted, and you are found not to be the father, you may then petition the court to terminate your parental rights during the divorce proceeding. Many are only familiar with termination of parental rights in the context of Juvenile or deprivation proceedings. However, according to O.C.G.A. § 19-7-1: parental rights may be lost or terminated by “[…] A Superior court order terminating parental rights of the legal father or the biological father who is not the legal father of the child in a petition for legitimation, a petition to establish paternity [or] a divorce proceeding […] provided that such termination is in the best interest of such child […].” O.C.G.A. § 19-7-1(b)(8). In other words, as a part of the Final Judgment and Decree of Divorce in your case, the judge can issue and order terminating your parental rights concerning a child born during your marriage that is not your biological child. This turn would eliminate any responsibility you would have to pay child support for that child.

It is important to note that although a Superior court judge may terminate parental rights during a divorce proceeding, he or she will only do so if it is in the best interest of the child. In determining the best interest of the child, the court will not only consider the child’s biological parentage, but also whether the non-biological father has ever acted as the child’s father. For example, a court may not terminate parental rights where a man supported a child financially or otherwise, knowing the child may not be his biologically.

The process of de-legitimation or terminating parental rights during the divorce process is extremely complex, and involves the analysis and application of Georgia statutory and case law to be successful. So, if you are divorcing and you are concerned that “your child” really isn’t yours, contact our office today to discuss your options in more detail.

Paternity vs. Legitimation in Georgia: What’s the Difference?

Tuesday, July 15th, 2014

As Georgia divorce attorneys who help clients with domestic relations matters ranging from uncontested divorces and separate maintenance actions to matters involving child support and child custody, such as paternity and legitimation actions, we are often asked: “What’s the difference between Legitimation and Paternity is Georgia?”

Georgia courts have long made it clear that paternity and legitimation are two distinct legal concepts in Georgia. In fact, the Georgia Court of Appeals makes this point explicitly in its decision in Ghrist v. Fricks et al., 219 Ga. App. 415 (1995). In that decision the court stated that “paternity and legitimation are not the same thing. Biology is not destiny, and a man has no absolute right to the grant of his petition to legitimate a child simply because he is the biological father. Instead we have held time and time again that the court must consider the best interest and welfare of the child before granting a legitimation petition, and that it is not bound by the desires and contentions of the biological parents.” Id.

Put another way, paternity is based on biology in Georgia. Once a man is determined to be the biological father of a child, paternity may be established. With the establishment of paternity also comes the establishment of a father’s financial obligation to the minor child. On the other hand, legitimation is not based on biology alone. In fact, a man may be deemed the biological father of a child, by virtue of a paternity judgment, without being granted any legal child custody or visitation rights. This is so because in Georgia, a father must legitimize his child in order to establish a legal relationship with his child. Only once this legal relationship is established will a father be granted visitation and child custody rights. In essence, paternity equals child support, and legitimation equals child custody and parenting time.

Signing the Birth Certificate is Not Enough

Tuesday, May 27th, 2014

As Atlanta divorce attorneys, we often hear one common misnomer repeated over and over again by biological fathers upon being asked whether a legal relationship has been established between them and their biological child:

“Of course! I signed the birth certificate.”

As these fathers soon discover, signing the birth certificate is simply not enough to establish a legal relationship between themselves and their biological child. In order for a legal relationship between a biological father and his child to be established, that father must seek to legitimate his child.

Although signing the birth certificate may be viewed as an indicia of paternity, establishing that a father is the biological father of a child is not enough to establish a legal relationship between father and child. According to Georgia law, if a child is born to two parents who are not married, the biological mother is the only parent entitled to custody of the child, unless the father has gone through the steps necessary to legitimate the child. O.C.G.A. § 19-7-25. This is true even if the father has signed the birth certificate or paternity has been established by another means. What this means practically is that even though a father has signed the child’s birth certificate, indicating paternity, that father has no legal right to visitation or custody of that child unless and until the father goes through the legal process to legitimate the child.



New Jersey Mothers May Restrict Putative Fathers’ Access to Delivery Room

Thursday, May 8th, 2014

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In an opinion rendered and authored by Judge Mohammed, New Jersey’s Superior Court ruled that in cases when the mother and putative father are not married, putative fathers do not have the right to be present at the birth of the child if the mother objects. The matter, styled Steven Plotnick vs. Rebecca Deluccia was initiated by Plotnick due to the couple’s dispute regarding whether Plotnick would be allowed to be present at their child’s birth and sign the birth certificate, among other things. Although the court relied on certain well established principles of New Jersey and Federal law, such as patient privacy and the right to privacy generally, this particular issue was a matter of first impression before the court.

This case stems from Mr. Plotnick’s Petition in which he sought a court order mandating:  1) that he be notified when the mother entered labor, 2) that he be allowed to be present during the birth is hereby denied, 3) that he be allowed to sign the birth certificate at birth and have his surname added to the certificate on the exact date of birth, and 4) that a temporary parenting time schedule be entered in anticipation of the child’s birth. Although these requests may not seem like the type to result in litigation, Mr. Plotnick who was previously engaged to Ms. Deluccia claimed in his petition that his requests to be present at their child’s birth were rejected by Ms. Deluccia, thus prompting him to seek the court’s intervention. Ms. Deluccia denies the allegation, stating that she never objected to Plotnick being present at the hospital during their child’s birth. Her only preference was for Plotnick to remain outside the actual delivery room.

In the twenty-three page decision, the court ruled against Mr. Plotnick and denied all four of his requests, stating: “Thus the court finds that the mother’s constitutionally protected interests before the child is born far outweigh the State’s and father’s interests during the delivery period.” Although this is a New Jersey case, Georgia fathers should take note as this is matter serves as a perfect example of why it is extremely important for fathers who have never been married to the mothers (or expectant mothers) of their children to legitimate their children as soon as possible. In his opinion, Judge Mohammed specifically referenced New Jersey’s certificate of parentage, which is similar to Georgia’s Acknowledgement of Legitimation in explaining why Mr. Plotnick’s quest to sign the child’s birth certificate at birth was not sufficient to establish paternity legally. For more information regarding legitimation and paternity in Georgia, see our articles further addressing these topics.



Can my son’s father stop me from moving out of state with our son?

Friday, June 21st, 2013

The answer to this question depends on whether the father has ever legitimated the child. If the father has legitimated the child, custody and visitation rights (which would include the abilityto move out of state with the child), will be governed by the Parenting Plan which would have been entered in the legitimation action.

If, however, the father has not legitimated the child, he has no rights whatsoever and there is nothing legally preventing you from leaving the state. The only way he can “legally” stop you fromleaving on a short-term basis is by filing a legitimation action. Upon filing, you will be served with a standing order that states that neither party can leave the state with the minor childuntil further order of the court or agreement of the parties. If you are served with this notice, you can still go to the Court to ask for permission to leave the state on a temporary basis,pending the outcome of the legitimation action. It should be noted, however, that depending on the outcome of the legitimation action, you and the child might not be permitted to leavepermanently.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

Name change for child after Georgia legitimation?

Friday, April 26th, 2013

An issue that periodically comes up in Georgia family law cases is a potential name change for a child affected by the action. Whether a divorce action where the mother is returning to her maidenname, or a legitimation action where the new legal father wants the child to have his last name, changing the last name of a child can be an issue to be decided in the case. The Court of Appealsof Georgia recently heard a case where a father sought to change the name of his child through his legitimation petition. Riggins v. Stirgus, A12A2512 (2013). In that case, the trial courtgranted the name change after hearing evidence of the father’s close relationship with the child, and the father testified that the name change would strengthen the father’s bond with the childand ensure that the child bonded with the father’s relatives. Id. at 3. In addition, the mother had remarried and taken her new husband’s name; thus, she no longer had the same last nameas the child. Id.

Although the mother appealed, arguing that there was insufficient evidence showing that the name change was in the child’s best interest, the Court of Appeals affirmed the ruling. The Court heldthat the child’s best interest was considered, and seemed particularly moved by the fact that the mother and child no longer shared the same last name. Id. at 4.

Although the name change in this case was affirmed, it is important to note that a party must prove that the name change is in the child’s best interests. OCGA §19-7-22. Both parties can present evidence as to how the name change would impact the child’s interestsand the court will make a decision accordingly.

Fathers’ Rights and Legitimation in Georgia

Monday, December 10th, 2012

What is legitimation?

Legitimation is the process that a biological father may undertake to legally establish a relationship with his child. It is only necessary for a father to legitimate his children if he and themother of his child were never married to each other. The purpose of Georgia’s legitimation and paternity laws are to provide a way for fathers to establish paternity and thus legal relationshipswith their children. Ghrist v. Fricks, 219 Ga.App. 415 (1995).

If both mother and father agree and consent to the legitimation, both parents may voluntarily acknowledge legitimation by completing an Acknowledgement of legitimation. O.C.G.A. § 19-7-21.1. In order for legitimation by acknowledgement to be effective, the parents mustcomplete the acknowledgement prior to the child’s first birthday. Id.

If both parents do not agree to legitimation, or if the father is unsure whether the mother may consent, the father may submit a petition for legitimation to the court in the county where themother resides. O.C.G.A. § 19-7-23(a). Once a father files this petition, the legitimation proceedingwill be initiated, and a court will hear evidence by both parties to determine whether legitimation is appropriate. A court evaluates whether legitimation is appropriate by determining whetherthe father may be a fit parent or whether legitimation will be in the best interest of the child involved. See In re Baby Girl Eason, 257 Ga. 292 (1987).

Why is it important?

Prior to legitimation of a child born out of wedlock, the mother is entitled to custody and she may exercise all parental power over the child. O.C.G.A. § 19-7-25. Essentially, before a father legitimates his child, he has no legally recognizedconnection with the child, and he may not legally make decisions on behalf of the child or exercise custody. But, in his petition for legitimation, a father may include claims for visitation,parenting time or child custody. If a father chooses to assert these claims, the court presiding over the matter may grant the father these rights upon a finding that legitimation is appropriate.See O.C.G.A. §19-7-22. Legitimation is also important because prior to legitimation, a child has nolegal right to inherit from her father, and her father has no legal right to inherit from her. See O.C.G.A. § 19-7-22(c).

Not only is it important for a father to seek legitimation of his child, it is important that he do so in a timely manner. If a father delays in legitimating his child, and a court determinesthat this delay was unreasonable, a court may find that that father has abandoned his opportunity to develop a relationship with the child. If a court makes this finding, it may deny the father’spetition for legitimation. In some circumstances a delay of over a year may be deemed by a court as unreasonable. In re Baby Girl Eason, 257 Ga. 292 (1987). In the Interest of J.L.E., 281 Ga.App. 805 (2006).

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

Legitimation and due process in Georgia

Friday, February 17th, 2012

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.

Termination of parental rights in Georgia when father is not on birth certificate

Monday, January 30th, 2012

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

Legitimation and abandonment in Georgia

Monday, November 28th, 2011

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.