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Paternity vs. Legitimation in Georgia

In Georgia, there are two domestic relations actions that specifically relate to the father child relationship, paternity actions and legitimation actions. Although these are two separate and distinct actions, they are often misunderstood and confused with one another.

Paternity actions may be filed in circumstances where the paternity of a child is either in question or has yet to be established, for example in situations in which the mother and the father of the child have never been married. Often paternity actions are filed by mothers seeking to establish paternity in order to obtain court order child support of the benefit of the child. However, paternity actions may not only be filed by the mother of the child, but may also be filed by the presumptive biological father in order to legally establish paternity. See O.C.G.A. §§ 19-7-40 et seq., 19-11-14, and 19-7-49 (a).

Conversely, legitimation is the process that a biological father may undertake in Georgia to legally establish a relationship with his child, in situations where the mother and the father of the child were never married to each other. Unlike paternity actions, the purpose of legitimation is not to establish who the father of the child is legally, but to establish the legal relationship between father and child. Prior to the legitimation of a child born out of wedlock, the father has no legally recognized relationship with the child, and he may not legally make decisions on behalf of the child, obtain custody or exercise visitation. O.C.G.A. § 19-7-25. The legitimation process provides a biological father opportunity legally establish the father child relationship and assert these rights.

Essentially, the major difference between paternity actions and legitimations actions is that although a paternity order may establish a father’s duty of support, a paternity order may not award a father visitation rights or any other rights regarding the child unless the biological father has sought to legitimate the child by either filing a petition for legitimation of filing a counterclaim for legitimation in response to the mother’s paternity action.  Mabry v. Tadlock 157 Ga. App. 257 (1981) and O.C.G.A. § 19-7-51.

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