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If you have divorce questions

I'm Divorcing, But What If “My Child” Isn’t Mine?

In Georgia, a man married to a woman at the time she conceives or gives birth to a child is presumed to be the biological father of that child, and will be deemed the legal father of that child upon divorce. As a result, that man will be liable for child support. But, what if he is not the biological father of that child? If you are a man currently considering or going through a divorce in Georgia, and you have concerns that your child really isn’t yours, you may be concerned that you will be left paying child support for someone else’s child post-divorce. Although it is difficult to defeat the presumption that you are the father of children born during your marriage, it is possible.

If you have concerns that your child isn’t really yours, it is imperative that you address this during the divorce process, not afterwards. In fact, the sooner you inject this issue into the divorce, the better. So, in your Complaint for Divorce, or in your Answer to your wife’s divorce complaint, state that you believe the child born during your marriage is not your biological child, and ask the court to order a DNA test. Even though it is possible for you and your soon to be ex-wife to agree that the child is not your biological child, seeking a DNA test is the best way to have conclusive evidence in case the issue is disputed later.

Once a DNA test has been conducted, and you are found not to be the father, you may then petition the court to terminate your parental rights during the divorce proceeding. Many are only familiar with termination of parental rights in the context of Juvenile or deprivation proceedings. However, according to O.C.G.A. § 19-7-1: parental rights may be lost or terminated by “[…] A Superior court order terminating parental rights of the legal father or the biological father who is not the legal father of the child in a petition for legitimation, a petition to establish paternity [or] a divorce proceeding […] provided that such termination is in the best interest of such child […].” O.C.G.A. § 19-7-1(b)(8). In other words, as a part of the Final Judgment and Decree of Divorce in your case, the judge can issue and order terminating your parental rights concerning a child born during your marriage that is not your biological child. This turn would eliminate any responsibility you would have to pay child support for that child.

It is important to note that although a Superior court judge may terminate parental rights during a divorce proceeding, he or she will only do so if it is in the best interest of the child. In determining the best interest of the child, the court will not only consider the child’s biological parentage, but also whether the non-biological father has ever acted as the child’s father. For example, a court may not terminate parental rights where a man supported a child financially or otherwise, knowing the child may not be his biologically.

The process of de-legitimation or terminating parental rights during the divorce process is extremely complex, and involves the analysis and application of Georgia statutory and case law to be successful. So, if you are divorcing and you are concerned that “your child” really isn’t yours, contact our office today to discuss your options in more detail.


Legitimation Paternity
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