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Legitimation

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.

Requirements for Petition for Legitimation in Georgia

Friday, April 29th, 2011

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 motheris 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 mustinclude “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 benamed 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 presentevidence 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 inaccordance with the Georgia child support guidelines. OCGA §19-7-22(e).

Rights of legal father in legitimation action

Monday, November 22nd, 2010

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.

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

Thursday, July 29th, 2010

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.

Legitimation in Georgia

Friday, November 28th, 2008

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 fatherthat 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/orthe 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 distressedfathers 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 visitationor 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 grantthe 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 orthat 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 (forexample, 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 arelationship 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 “standardvisitation” 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 alternatingholidays 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 mostcases, 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 healthinsurance, daycare, and extracurricular costs.