Across the United States, more and more unmarried parents are having children. Each state addresses the rights of fathers of children born out of wedlock a bit differently. Georgia requires affirmative legal steps by the father, called legitimation. It is not enough in Georgia that the father was present when the child was born. It is not enough that the father’s name is on the child’s birth certificate. Also, it is not enough that the father signed an acknowledgment of paternity.

Without going through the proper legitimation process, a father has no legal rights to the child if he and the mother were not married at the time of the birth (or if he does not later marry the mother). Even if the father’s name appears on the birth certificate, the father must file a lawsuit for “legitimation” to be recognized as the child’s legal, legitimate father. Legitimation is also required for the child to inherit from its father, and vice versa (in the absence of will stating this specifically).

However, legitimation is not necessarily easy or automatic. Georgia law, found in O.C.G.A. §19-7-22, requires a father to file a lawsuit, naming the mother of the child as the defendant and seeking a court order finding that the child is the legitimate child of the father. But one very important additional step is necessary. The court must also find that it is in the child’s best interest that this relationship become legitimate. By law, the court must consider several factors before determining whether it is in the child’s best interest to have a legal relationship with the father.

In many cases, mothers consent to the father’s legitimation, asking the court to grant it. However, in response to a petition for legitimation the mother will typically counterclaim for paternity and child support (if child support is not already in place). The father may also seek legitimation and primary physical custody of the child. Such cases are much like child custody determinations in divorce.

However, a mother can also defend against legitimation and contend that the legitimation is not in the child’s best interest. A mother may argue that the father is not the biological father, or, if he is, she may argue that he has lost or abandoned his opportunity to foster a relationship with the child. A father has what is called an “opportunity interest” to develop a bond with the child. Should a father delay seeing his child or providing for his child for an extended period of time, then the court may determine that the father has lost his opportunity to legitimate his relationship with the child.

When the father has failed to establish a relationship, or where the father’s conduct is possibly harmful to a child, the court may find that it is not in the child’s best interest to have a relationship with him. In such cases, the judge has enormous discretion

to legitimate or not (as well as under which conditions). This is why it is wise to hire an attorney to aid him through this process.

We are happy to speak with parents about the legitimation process and analyze the arguments in favor or against legitimation in their case.