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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.

Establishing Paternity when both Putative Fathers are Identical Twins

Wednesday, September 16th, 2015

A few years ago, a paternity and child support case in Missouri presented a very interesting question regarding the determination of paternity: What happens when both putative fathers named in a paternity action are identical twins? In this Missouri case, twin brothers Raymon and Richard Miller both unknowingly engaged in a sexual relationship with the same woman. Subsequently, the woman both brothers were seeing, Holly Marie Adams, became pregnant. Although Holly named Raymon as the putative father for the purposes of determining paternity and establishing child support, Raymon objected and demanded a paternity test. However, in this case, a paternity test proved unhelpful for two reasons: 1) because Raymon and Richard are twins and share the same DNA, a paternity test revealed both brothers have over a 99.9% probability of being the father of Holly’s child, and 2) during the court proceeding, Holly testified that she had sex with both brothers, within hours of each other, near the date of conception.

Although the judge assigned to the case, Judge Fred Copeland, was not able to rely on the result of genetic testing to determine paternity and child support in this case, Judge Copeland ruled that regardless of the identical DNA test and the overlapping relationships, Raymon would be named the legal father of the child in question. In support of his decision, Judge Copeland noted that a court is not limited to relying solely on the results of a DNA test to determine paternity. Raymon appealed Judge Copeland’s decision, arguing that he should not be named the legal father, because the identical DNA results make it impossible to determine which brother is truly the biological father of the child in question. On appeal, the Appellate Court upheld Judge Copeland’s decision, which was based on the testimonial evidence presented at the hearing. Specifically, Judge Copeland relied on the testimony of Holly Adams, who testified that she believed the date of conception can be traced back to a night spent with Raymon.

Genetic or DNA testing is a very useful tool used by courts to determine paternity in cases where paternity is contested. But, as shown in this Missouri case, DNA testing cannot always be relied on to resolve paternity disputes. When the results of a DNA test are not reliable or definitive, paternity can still be established. In such a situation, a presiding court must simply rely on the tools and methods used to establish paternity before DNA testing was widely available, such as witness testimony and calculations regarding the date of conception.


Setting Aside Paternity Judgments in Georgia

Tuesday, July 8th, 2014

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Prior to 2002, when Georgia’s current statutory law regarding setting aside paternity judgments was enacted, it was slightly more difficult to successfully challenge an inaccurate or inappropriate paternity judgment, because the law of challenging paternity judgments was largely based on case law. With the enactment of Georgia’s current statutory law regarding setting aside paternity judgments 2002, those seeking to challenge paternity judgments were given a statutory framework outlining when a paternity judgment may be challenged and how.

 According to Georgia law, in order for a man to successfully challenge a paternity judgment via a motion to set aside a determination of paternity, he must file his motion with the Superior Court in the appropriate county along with the following documents:

(1) An affidavit executed by the movant that the newly discovered evidence has come to movant’s knowledge since the entry of judgment; and

(2) The results from scientifically credible parentage-determination genetic testing, as authorized under Code Section 19-7-46 and administered within 90 days prior to the filing of such motion that finds that there is a 0 percent probability that the male ordered to pay such child support is the father of the child for whom support is required.

O.C.G.A. § 19-7-54(a).

If a man who has been determined to be the legal father of a child, and thus ordered to pay child support, is able to meet the requirements set out above, the presiding court will grant his motion if the court also finds the following to be true:

(1) The genetic test required in paragraph (2) of subsection (a) of this Code section was properly conducted;

(2) The male ordered to pay child support has not adopted the child;

(3) The child was not conceived by artificial insemination while the male ordered to pay child support and the child’s mother were in wedlock;

(4) The male ordered to pay child support did not act to prevent the biological father of the child from asserting his paternal rights with respect to the child; and

(5) The male ordered to pay child support with knowledge that he is not the biological father of the child has not:

(A) Married the mother of the child and voluntarily assumed the parental obligation and duty to pay child support;

(B) Acknowledged his paternity of the child in a sworn statement;

(C) Been named as the child’s biological father on the child’s birth certificate with his consent;

(D) Been required to support the child because of a written voluntary promise;

(E) Received written notice from the Department of Human Resources, any other state agency, or any court directing him to submit to genetic testing which he disregarded;

(F) Signed a voluntary acknowledgment of paternity as provided in Code Section 19-7-46.1; or

(G) Proclaimed himself to be the child’s biological father.

O.C.G.A. § 19-7-54(b).

The above cited law addresses when and how a man may go about challenging a paternity judgment rendered by a court in Georgia. However, when paternity has been established via a voluntarily acknowledged paternity, the means to set aside or obtain relief from an inappropriate paternity determination are different. If you are a man who has been determined to be the legal father of a child, and you believe this determination was made in error, or if you believe you have acknowledged or agreed to a paternity determination in error, contact a member of the Atlanta Divorce Team to discuss the legal options available to set aside the paternity judgment and terminate the associated child support order.

Putative Father Registry: Can I Deny Paternity?

Monday, June 9th, 2014

The simple answer to the question posed above is: Yes, it is possible for you to rescind your acknowledgement or deny paternity even after signing the putative father registry and acknowledging paternity. But, like any other legal issue, especially family law issues, there are exceptions to this general rule and the ability to rescind an acknowledgement rely on the specific circumstances of your case. Now, for the longer answer…

Generally, once you have acknowledged paternity on the putative father registry you may subsequently deny paternity or rescind the acknowledgement at any time before a child support or other order is entered that establishes that you are the father of the child, such as an order of paternity or order of legitimation. If the mother agreed that you were the father of the child and indicated such by signing an acknowledgement of paternity with you, you may rescind your acknowledgement of paternity as long as you do so within 60 days of your initial acknowledgment. Within this time limit, you may rescind your acknowledgment at any time unless a court enters an order finding that you are the father of the child.

Georgia’s law regarding the rescission of paternity acknowledgments is codified in O.C.G.A. § 19-7-46.1. According to Georgia law:

A voluntary acknowledgment of paternity or registration with the putative father registry is subject to the right of any signatory to rescind the acknowledgment prior to the date of the support order, any other order adjudicating paternity, or 60 days from the signing of the agreement, whichever is earliest. Recording such information in the putative father registry shall constitute a legal determination of paternity for purposes of establishing a future order for support, visitation privileges, and other matters under § 19-7-51.

After the 60-day rescission period, the signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the person challenging the acknowledgment. The legal responsibilities of any signatory, including child support obligations, arising from the acknowledgment may not be suspended during the challenge, except for good cause shown.


If, after this 60 day period, you later find that you are not in fact the father of the child all hope is not lost. However, after the time limit is lapsed it will be necessary to contact a Georgia paternity attorney to aid you with the process of rescind your acknowledgment and disestablishing paternity.

Georgia Putative Father Registry

Monday, June 2nd, 2014

What is the putative father registry in Georgia?

In Georgia, the putative father registry is a statewide listing containing information about men who may be the biological father of a child. Georgia’s putative father registry lists the name, address, and social security number of men who have either:

(1) Acknowledged that they are the father of a child in a signed writing called an Acknowledgement of Paternity, or

(2) Registered themselves with the putative father registry to indicate the possibility that they may be the father of a child.

See O.C.G.A. § 19-11-9(d)(1).

Why should a father register with the putative father registry in Georgia?

A man should register with Georgia’s putative father registry if:

  • He believes he may be the father of a child in Georgia
  • The mother of the child is preventing him from having contact with the child
  • He does not know where his child is currently living

It is important for fathers who believe they may be the father of a child, even if paternity has yet to be established via a blood test, to register with the putative father registry, because registering will ensure that father is notified about any adoptions petitions that may have been filed concerning the child. Additionally, registering with the putative father registry will also ensure that the father will receive notice of other court proceedings where his parental rights are subject to termination. To guarantee adequate notice of any legal proceedings involving the child, the putative father should register as soon as he becomes aware that he may be the father of a child, preferably before the child’s birth. See O.C.G.A. § 15-11-83(i)(3).

How does a father register with Georgia’s putative father registry?

In some situations, a putative or alleged father’s name and information will automatically appear on the Registry. For example, a father may be automatically registered if his name appears on the child’s birth certificate. In situations where a father name does not automatically appear on the registry, he must register with the state agency that maintains the registry, the Georgia Department of Human Resources division of Vital Records. As mentioned above, a father may register under one of two categories: 1) a father may claim that he is the father of a child, or 2) a father may claim that he is possible the father of a child.

Fathers who have not been automatically registered may find a putative rather registry registration form at their county’s Vital Records Registrar’s Office, Health Department, or probate court office. Additionally, the form may be obtained online from the Department of Human Resources, Division of Vital Records. If a father has already registered with the putative father registry, but needs to update information such as his address, he may mail or fax a letter to the address below. In the letter the father should include his complete name, Social Security number, old information as it was originally entered in the Registry, and the new information as it should be shown in the Registry.

Putative Father Registry
Vital Records
2600 Skyland Drive NE
Atlanta, GA 30319-3640
FAX (404) 679-4730

Delegitimation is Possible in Georgia but is Not Favored

Monday, March 3rd, 2014

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In Georgia, in order for a man to be deemed the legal father of a child, the child must have been born during marriage or have been legitimated. See O.C.G.A. § 19-7-21.1.  If a child is born to two parents who are not married to each other, he or she may be legitimated by their biological father to establish the legal father/child relationship between the biological father and the child. Id. However, what happens in the situation where more than one father seeks to be the legitimate or legal father of one child? In such a situation, a legal phenomenon known as delegitimation may occur.

Delegitimation may occur if, for example:

Mother becomes pregnant and subsequently gives birth while in a relationship with Boyfriend. Boyfriend believing that the child is his files for and obtains an order for legitimation. A few years later, Boyfriend seeks and obtains primary custody of the child. In response, Mother alleges that Boyfriend should not be entitled to custody, because he is not the true biological father of child. After paternity testing is performed, Father is identified at the true biological father of the child, and Father files to legitimate the child. If the court presiding over the matter grants Father’s Petition for Legitimation, Boyfriend’s status as the legal father of child will be effectively terminated, and Boyfriend will effectively be delegitimated.

See generally Davis v. LeBrec, 274 Ga. 5 (2001); Baker v. Baker, 276 Ga. 778 (2003); Mathers v. Dukes, 314 Ga. App. 782 (2012). The issue of delegitimation has been reviewed by both the Georgia Supreme Court and the Georgia Court of Appeals, and the holdings by Georgia’s high courts indicate that although delegitimation as a concept is recognized by the courts, it is not favored. In each of the above cited cases, the court presiding over the matter refused to delegitimate the legal father. Often, the rational for the court’s refusal to delegitimate the legal father often revolves around the best interest of the child standard. Although Georgia courts tend to disfavor delegitimation, this concept is recognized by the court, and may be possible under the appropriate circumstances.

The Orlando Shaw Case: How Would Georgia Law Apply?

Friday, August 9th, 2013

How would Georgia law apply to a divorce, child custody, paternity or legitimation action in which 22 children were involved? Well, we will soon find out how the law of Tennessee would apply in such a case when the Davidson County, Tennessee Juvenile Court determines the outcome in the Orlando Shaw matter.

According to Nashville media outlets, Orlando Shaw, a Tennessee native who has fathered 22 children with 14 women, is currently facing what is possibly one of Tennessee’s most expansive and expensive child support cases. The mothers of Shaw’s children have sought the intervention of the Davidson County court system in order to recover several thousands of dollars in unpaid child support. The 33 year old Shaw argues that he is unable to meet his substantial child support burden due to his inability to obtain adequate employment because of his prior criminal record.

Even if Shaw did not face any difficulty in finding employment, Magistrate Judge Scott Rosenberg, the presiding judge in the matter, suggested in a statement that one job may be grossly insufficient. According to Magistrate Rosenberg, Shaw would likely have to take on up to three or four full time jobs to even come close to being able to satisfy his child support obligation. In addition to the difficulty that Shaw will face in meeting his obligation, Magistrate Rosenberg will likely face some difficulty himself in applying Tennessee state law to Shaw’s case. In a statement, Magistrate Rosenberg questioned: “How do we apply our child support guidelines to this many children in this many households?”

Applying this very question to Georgia law, we find that it is very likely that any Georgia judge in Magistrate Rosenberg’s position would likely be momentarily puzzled as well. According to Georgia law, child support shall be calculated using Georgia’s Child Support Worksheet. Taking a look at the worksheet, it becomes clear that a matter involving more than 20 children was not anticipated by the child support commission, as the worksheet only allows for child support calculations for up to 12 children at a time. See Georgia’s Guide to Implementation of The New Child Support Guidelines, Part I, Section 5.

One solution a court would likely consider in a matter such as the Shaw case where the children reside is different households, is allowing for adjustments for other, preexisting child support orders by utilizing Schedule B of the child support worksheet. Additionally, as the number of the adjustments that may be made in Schedule B is also limited, the likely outcome in a case such as the Shaw matter is that the presiding court would utilize is discretion in determining the child support amount that should be awarded to the custodial parents. See generally O.C.G.A. 19-6-15. Hopefully no Georgia court will be presented with facts such as those of the Shaw case, but if they were, it would be interesting to analyze the court’s determination in the matter.

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

Temporary child support in Georgia paternity cases

Monday, May 16th, 2011

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 pendinga 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 supportpayments 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 judgmentthat 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 inescrow “shall be returned to the putative father along with any interest that may have accrued.” OCGA §19-7-46.2(d).