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Reproductive Assistance and Child Custody in Georgia

In early February, Reuters published an interesting article concerning the rights of biological and legal parents entitled “Florida Judge approves birth certificate listing three parents.” According to this article, a Miami-Dade Circuit Court Judge approved the adoption of a 22-month-old baby girl that will list three people as parents on her birth certificate: a married lesbian couple and a gay man. The judge’s decision resolves the two-year paternity fight between the couple and the man, a friend of the women who donated his sperm to father the child, but later sought a larger role in the child’s life. Although the man was not awarded custody of the child, and is not required to pay child support for the child, he was awarded visitation rights so that he could have some participation in the child’s life.

Reading this article caused me to wonder: What would happen if this situation was to occur in Georgia? After some research, I discovered the answer in Georgia’s statutory and case law concerning domestic relations. According to Georgia law, if a child is born out of wedlock, the mother of the child is entitled to the possession of the child and, being the only legally recognized parent,she exercises all the parental power. O.C.G.A. § 19-7-25. Unless the biological father undertakes the necessary step to legitimate the child and thus claim his equal, legal custodial and parental rights to the child, the mother may retain exclusive legal rights concerning the child. What this means is that unless the biological father legitimates the child, he has no legal right to custody or visitation. O.C.G.A. § 19-7-22 and Mitchell v. Ward, 231 Ga. 671 (1974). Although a biological father in entitled to initiate a petition for legitimation, there is no guarantee that a biological father’s petition for legitimation will be granted. See O.C.G.A. § 19-8-12.

Regarding the rights of a non-legitimated biological father as opposed to an adoptive parent, under prior Georgia law, a biological father who was not the legal father of the child had no standing to raise an issue of custody, and the mother’s written consent was sufficient for adoption. However, under current Georgia law, notice must be provided to biological fathers in certain circumstances, along with the opportunity for the biological father to legitimate the child. O.C.G.A. §19-8-12. If the father fails to legitimate the child, he has no standing to object to the child’s adoption. In the Interest of A.D., 286 Ga. App. 352 (2007). On the other hand, if the biological father does legitimate the child, in a contest between him and third parties, like potential adoptive parents, his rights depend on the specific facts of the case. If the biological father does not wish to seek legal rights to the child, he may surrender all his parental rights for the purpose of an adoption, including a pre-birth surrender of rights. O.C.G.A. § 19-8-26(f).

Applying the facts above to Georgia law, is seems that in order to avoid the lengthy litigation concerning which party had recognized parental rights, the couple should have requested that their male friend surrender his parental rights prior to the birth of the child. Without this surrender, it is not clear that the couple would have defeated their male friend’s claim to parental rights to the child, especially if he successfully legitimated the child. However, has mentioned above, a biological father’s rights, as opposed to those of adoptive or prospective adoptive parents,depend on the specific facts of the case. Thus, if you are considering obtaining reproductive assistance, or if you are considering adopting a child from his or her biological parents, seek the aid and advice of an experienced family law attorney specializing in the areas of child custody and adoption.

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

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