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Rights of legal father in legitimation action

The Georgia Court of Appeals recently addressed the rights of a legal father in a legitimation action brought by the child’s biological father. In Baker v. Lankford, the wife gave birth to a child during her marriage to the husband. Baker v. Lankford, A10A1211 (2010). The husband believed the child was his biological child, and was listed as the father on the child’s birth certificate, only to later find out that he was not the biological father. Id. He filed for divorce and, while the divorce was pending, the biological father filed a petition for legitimation, custody and visitation, to which the wife/mother consented. Id. at 2. Shortly thereafter, the husband/legal father moved to intervene in the legitimation proceeding. A few days later, while the motion was still pending, the trial court granted the legitimation petition and then denied the motion to intervene. Id. at 3.

On appeal, the Georgia Court of Appeals agreed that the trial court erred in denying the husband/legal father’s motion to intervene. The Court of Appeals found that the husband/legal father had an interest in the legitimation proceeding, as he was the child’s legal father (the child being born during the marriage) and, thereby had parental and custodial rights to the child. Id.at 4. In addition, the Court found that his interest as the child’s father “would be impaired by a decision of the trial court that was unfavorable to him, and his interest was not adequately represented by the parties to the action,” especially in light of the wife’s consent to the action. Id. at 6.

The Court held that “[w]here intervention appears before final judgment, where the rights of the intervening party have not been protected, and where the denial of intervention would dispose of the intervening party’s cause of action, intervention should be allowed and the failure to do so amounts to an abuse of discretion.” Id. at 7. The Court, therefore, reversed the denial of the motion to intervene and vacated the judgment on the legitimation petition.

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