Legitimation Procedure

In order to initiate a legitimation action by filing a petition for legitimation, the biological father must generally file the petition in the Superior Court located in the county where the child's mother resides or in the county where the child's legal custodian or guardian resides.

In his petition for legitimation, the biological father must list the name, gender and age of the child, the name of the child's mother, and the last name the biological father would like the child to take - if the father desires for the child to take his last name. O.C.G.A. § 19-7-22(b). In a legitimation action, the child's mother or legal guardian would be the respondent or defendant in the action, and just as with other civil actions, the respondent must be served personally with the petition for legitimation.

It is important for any father who wishes to legitimate his child to do so within a timely manner in order to avoid any possible complications in the legitimation process. Waiting too long to legitimate your child may sometimes raise questions about whether or not the father really wants to be involved in their child's life.

If the petition has been filed and the legitimation is contested by the child's mother, you will likely have to resolve the matter before a judge in a hearing. Although a biological father has the right to petition the court for legitimation, the biological father does not have the absolute right to have his petition granted by the judge. In fact, if the court finds the biological father unfit or finds that it would not be in the child's best interests to legitimate the child, the court must deny the father's petition.

There is a caveat regarding the standard the trial court must use to determine whether to grant or deny a father's petition for legitimation. The parental fitness standard has been used by trial courts in Georgia. That is, pursuant to In re Eason, 257 Ga. 292 (1987), "if an unwed biological father has not abandoned his opportunity interest, he has a constitutional right to obtain custody of his child over individuals who are strangers to the child and who seek to adopt unless the biological father is deemed unfit." Mathenia v. Brumbelow, 308 Ga. 714, (2020). However, the validity of the parental fitness standard is not clear considering the enactment of new laws on July 1, 2016, mandating that the best interests of the child standard be used in legitimation cases. See O.C.G.A. § 19-7-22 (d)(1) "Upon the presentation and filing of a legitimation petition, and after a hearing for which notice was provided to all interested parties, the court may issue an order declaring the biological father's relationship with the child to be legitimate, provided that such order is in the best interests of the child….." (emphasis added). The Georgia Supreme Court in Brumbelow noted the tension between the parental fitness standard and the best interests of the child standard in legitimation cases and further questioned the constitutionality of O.C.G.A. § 19-7-22 (d)(1). However, the Supreme Court did not rule on which standard should be used in legitimation cases. Thus, as of now, it is not clear which standard must be used by the trial courts in determining whether to grant or deny a father's petition for legitimation.