Why Establish Paternity

As discussed in our article entitled "Paternity," Paternity actions are generally initiated by custodial mothers to obtain awards of child support on behalf of their minor children. In fact, it is a commonly held misnomer that obtaining an order of child support is the only benefit associated with seeking to establish the paternity of a minor child. Listed below are several reasons why biological mothers and biological fathers should seek to establish the paternity of their minor child or children.

• Inheritance- In Georgia, a child may only inherit from or through his or her biological mother unless the biological father's paternity has been established. Additionally, a biological father may not inherit from his biological child unless he has established his paternity of that child. According to Georgia statutory law regarding the inheritance rights of children born out of wedlock:

(1) A child born out of wedlock may inherit in the same manner as though legitimate from or through the child's mother, the other children of the mother, and any other maternal kin;

(2)(A) A child born out of wedlock may not inherit from or through the child's father, the other children of the father, or any paternal kin by reason of the paternal kinship, unless:

(i) A court of competent jurisdiction has entered an order declaring the child to be legitimate, under the authority of Code Section 19-7-22 or such other authority as may be provided by law;

(ii) A court of competent jurisdiction has otherwise entered a court order establishing paternity;

(iii) The father has executed a sworn statement signed by him attesting to the parent-child relationship;

(iv) The father has signed the birth certificate of the child; or

(v) There is other clear and convincing evidence that the child is the child of the father. […].

O.C.G.A. § 53-2-3. See also In re Estate of Warren, 300 Ga. App. 408 (2009).

• Child Support- As briefly discussed above, in instances where the biological mother and biological father were never married, the mother may obtain an order for child support by seeking and obtaining an order establishing paternity. See O.C.G.A. §§ 19-7-40 et seq., 19-11-14, and 19-7-49(a). It is important for fathers to note, especially fathers who initiate paternity proceedings, that although a paternity order may establish a father's duty of support, a paternity order will not automatically grant a father the visitation rights or any other rights regarding the child. For a father to establish a legally recognized relationship with his child, and thus enjoy visitation and custody rights, a father must either file a petition for legitimation or seek legitimation via a counterclaim for legitimation in response to a mother's paternity action. Mabry v. Tadlock, 157 Ga. App. 257 (1981) and O.C.G.A. § 19-7-51.
• Birth Certificate- Once paternity has been established, in addition to entering an order for child support, the court may also order the child's birth certificate to be amended to include the father's name. However, fathers who wish for their biological children to share their surname must accomplish this by initiating a legitimation proceeding. See O.C.G.A. § 19-7-22(c); Johnson v. Coggins, 124 Ga. App. 603 (1971).
• Social Security Benefits- For a child to received social security insurance benefits on the work record of a deceased parent, the child must prove that he or she would be able to inherit from the deceased parent under the intestacy laws of the state where the deceased parent was living at the time of death. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350 (2008); 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1 )(2008). As set out above under the sub section addressing inheritance, a child may inherit from his or her biological father if a court has established paternity.

Although there are several benefits associated with establishing paternity of a biological child that may be enjoyed by both biological mothers and fathers, there is one very important right biological fathers may not automatically obtain via a paternity action, custodial rights. For biological fathers to establish a legal relationship with their biological children born out of wedlock, and thus seek an award of child custody or parenting time, fathers must seek and obtain an order of legitimation. For more information regarding paternity generally or legitimation in Georgia, see our articles addressing these two very important legal concepts.