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.