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In Georgia, a biological father of a child may become the child’s legal father or legitimate the child by two methods: 1) by filing a petition for legitimation or 2) entering into an agreement with the child’s mother – this agreement is known as an acknowledgement of legitimation.
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. O.C.G.A. § 19-7-23(a). 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. Id.
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. Ghrist v. Fricks, 219 Ga.App. 415 (1995). 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. See Davis v. LaBree, 274 Ga. 5 (2001).
Alternatively, a father may legitimate his child by entering into an acknowledgement of legitimation with the child’s mother. An acknowledgement is a legal form stating that the mother and father have freely agreed and consented to the legitimation of the child. O.C.G.A. § 19-7-21.1(a)(1). However, an acknowledgement will not be recognized if:
(1) The mother was married to another man when the child was born;
(2) The mother was married to another man at any time within the usual period of gestation;
(3) There is another legal father;
(4) The mother has voluntarily and in writing surrendered all of her parental rights pursuant to the provisions of subsection (a) of any of Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7 and has not withdrawn her surrender as permitted by the provisions of subsection (b) of Code Section 19-8-9 or the mother's parental rights have been judicially terminated by a court of competent jurisdiction or an action to terminate such rights has been initiated and is pending;
(5) The mother has signed a voluntary acknowledgment of legitimation with another man; or
(6) The child is one year of age or older.
O.C.G.A. § 19-7-21.1(c). If any of the above mentioned circumstances exists, the only method of legitimation is via the father initiating a legitimation action by filing a petition for legitimation. See. O.C.G.A. § 19-7-21.1(d).
Thus, 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. For more general information regarding legitimation, see our article entitled: “Legitimation: Generally.”