Many
people probably have heard of legitimation actions, which is a legal process used
by fathers of children born out of wedlock to gain legal rights regarding their
biological children. However, people may be less familiar with delegitimation claims
than they are with legitimation claims. Simply put, delegitimation is the
opposite of legitimation. That is, a claim for delegitimation seeks to break
the legal ties existing between a legal father and his children. A father's
relationship with a child may be considered legitimate under certain
circumstances. For example, all children born during marriage to a married
couple are presumed to be legitimate. Also, the father of children born out of
wedlock may make his relationship with his children legitimate by filing a
legitimation action in court and obtaining a final order on legitimation.
One scenario where delegitimation may
be an issue is illustrated by Baker v. Baker, 276 Ga. 778 (2004). In Baker,
the wife was pregnant with another man when she married her husband. During the
marriage, the wife gave birth to the child at issue. The husband, knowing that
the child was not biologically his child, provided the child with both
emotional and financial support. The husband supported the wife during her
pregnancy. The husband voluntarily paid child support without a child support
order after his separation with the wife. The husband was listed as the child's
father on the child's birth certificate with the wife's consent. The biological
father was in prison at the time and was not involved with the child at issue.
Then,
the husband filed for divorce and sought, among other things, custody of the
child. The biological father of the child, still in prison at that time, also became
involved with the divorce action and challenged the husband's status as the
legal father.
DNA testing results showed that the
husband was not the biological father of the child. The wife challenged the
husband's status as the legal father of the child and requested that the trial
court deny the husband's request for custody of the child. While the trial
court agreed that it was in the child's best interests for the husband to be
the child's legal father, the trial court ruled that the best interests of the
child standard was not applicable to a mother's request for delegitimation. The
trial court granted the divorce and denied the husband's request for custody.
The Supreme Court of Georgia reversed
the trial court's ruling, holding that the trial court should have applied the
best interests of the child standard when ruling on the delegitimation issue. The
Supreme Court of Georgia reasoned that when a mother of a child seeks
delegitimation and the dissolution of a familiar unit is already in existence, all
parties' interests are best protected by applying the best interests of the
child standard.
While the fact pattern described in
the Baker case and other related cases may not be common, such fact
patterns do exist. If you find yourself in such a situation, you may want to
consult with an experienced divorce lawyer.
Written by: Daesik Shin