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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).

Admissible evidence in Georgia paternity cases

Friday, May 13th, 2011

Any relevant evidence may be introduced at a paternity hearingin Georgia, but there are specific rules regarding certain evidence, including the results of genetic testing. Specifically, theresults of genetic testing “shall be admitted in evidence without the need for foundation testimony or other proof of authenticity or accuracy” so long as a party to the genetic test does notobject in writing at least 30 days prior to the hearing. OCGA §19-7-46(a). If a party does object in writing within the required time frame, the evidence can still be admitted, but mustbe “offered by a duly qualified, licensed practicing physician, duly qualified immunologist, duly qualified geneticist, or other duly qualified person.” Id.

If a genetic test establishes at least a 97% probability of paternity, there is a rebuttable presumption of paternity. OCGA §19-7-46(b). A party can only overcome this presumption byoffering clear and convincing evidence that the paternity test is incorrect. Id.

A few other items are specifically mentioned under Georgia law as admissible evidence in a paternity hearing:
(1) Evidence of a refusal to submit to genetic testing is admissible “to show that the alleged father is not precluded from being the father of the child.” OCGA 19-7-46(c).
(2) An expert’s opinion about the time of conception is admissible. OCGA §19-7-46(d).
(3) Testimony relating to sexual access to the mother by any person on or about the probable time of conception is admissible. OCGA §19-7-46(e).

Petitions to Establish Paternity in Georgia

Tuesday, May 1st, 2007

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.” In situationssuch as this, the father may not be supporting the child at all, or an older child may wish to know with certainty the identity of his/her father. To remedy issues such as these, a party may filea petition to establish paternity. This petition may be brought by the child, the mother of the child, any relative in whose care the child has been placed, the Department of Human Services (ifpublic assistance is received), or an alleged father. OCGA §19-7-43(a)(1-5). The petition may be brought before the child is born, but all proceedings except service of process,discovery and depositions must be stayed until after the birth. OCGA §19-7-43(c).

Any party to the paternity proceeding may move for genetic testing of the mother, alleged father, and the child or children. OCGA §19-7-43(d). The motion must be “supported by a swornstatement (1) alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties; or (2) denying paternity and setting forthfacts establishing a reasonable possibility of the nonexistence of sexual contact between the parties.” OCGA §19-7-43(d). The court is required to grant the motion unless if finds good cause, or good excuse for noncooperation. Id.

The specifics surrounding genetic testing will be discussed in more detail in a future blog.

Requirements for genetic testing in Georgia paternity cases

Tuesday, May 1st, 2007

Georgia law has several requirements for genetic testing performed in paternity cases:

(1) Tests must be conducted by a laboratory certified by the American Association of Blood Banks.
(2) Genetic testing must be done as soon as medically possible after the birth of the child (in cases where paternity action is initiated prior to the child’s birth).
(3) Tests must be performed by a duly qualified licensed practicing physician, duly qualified immunologist, or other qualified person (as determined by the court).
(4) The results shall be made to all interested parties as soon as available.

OCGA §19-7-45.

Types of paternity testing include, but are not limited to, “red cell antigen, human leucocyte antigen (HLA), red cell enzyme, and serum protein electrophoresis tests or testing bydeoxyribonucleic acid (DNA) probes.” OCGA §19-7-46(b).