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Can the paternity of a child born during a marriage be challenged?

Paternity testing during a divorce case is not extremely common, but this issue does arise. The Georgia Court of Appeals recently affirmed a trial court’s denial of a mother’s motion to compel paternity testing of her husband. Williamson v. Williamson, 302 Ga. App. 115 (2010). In that divorce case, the wife alleged that the child born during the marriage might not be the biological child of the father and requested paternity testing. Id. at 116. After a temporary hearing in which the parties were awarded joint legal custody, the wife’s attorney sent a letter to the husband’s attorney confirming the parties’ agreement that paternity was no longer an issue. Id. Subsequently, the wife retained a new attorney and filed a motion requesting a paternity test, which the husband opposed. Id. The child’s guardian ad litem testified that a paternity test would not be in the child’s best interest and the court denied the wife’s motion. Id.

In her appeal, the wife alleges “she is not precluded from contesting paternity.” Id. The Georgia Court of Appeals agreed with her, stating neither the purported agreement nor the temporary order determined the issue on a final basis as there was not yet a final order in the case. Id. at 177.

However, even the Georgia Court of Appeals held that the wife had the right to contest paternity, it agreed with the trial court’s denial of her motion, which was based on the “best interest of the child” standard. Id. The wife had a huge hurdle to overcome since “[a]ll children born in wedlock are deemed under law to be legitimate.” Id. Further, “[t]he public policy favoring the presumption of a child’s legitimacy is one of the most firmly-established and persuasive precepts known in law.” Id., quoting Baker v. Baker, 376 Ga. 778, 779 (1)(582 SE2d 102) (2003). In affirming the denial of the wife’s motion to compel paternity testing, the Court of Appeals followed established Georgia law and held, “…even when the child’s legal father may not be the biological father, a mother who wishes to delegitimate her child is not automatically entitled to compel the legal father to submit to genetic paternity testing but must first come forward with evidence sufficient to show that delegitimating the child is in the child’s best interest. The record in this case contains no such threshold showing.”Williamson, 302 Ga. App. at 118.

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