2020 Georgia Code
Title 19 - Domestic Relations
Chapter 7 - Parent and Child Relationship Generally
Article 2 - Legitimacy
§ 19-7-22. Petition for Legitimation of Child; Requirement That Mother Be Named as a Party; Court Order; Effect; Claims for Custody or Visitation; Third-Party Action for Legitimation in Response to Petition to Establish Paternity

1. As used in this Code section, the term:
   1. "Biological father" means the male who impregnated the biological mother resulting in the birth of a child.
   2. "Legal father" means a male who has not surrendered or had terminated his rights to a child and who:
      1. Has legally adopted such child;
      2. Was married to the biological mother of such child at the time such child was born or within the usual period of gestation, unless paternity was disproved by a final order pursuant to Article 3 of this chapter;
      3. Married the legal mother of such child after such child was born and recognized such child as his own, unless paternity was disproved by a final order pursuant to Article 3 of this chapter; or
      4. Has legitimated such child pursuant to this Code section.
2. The biological father of a child born out of wedlock may render his relationship with the child legitimate by petitioning the superior court of the county of the residence of the child's mother or other party having legal custody or guardianship of the child; provided, however, that if the mother or other party having legal custody or guardianship of the child resides outside this state or cannot, after due diligence, be found within this state, the petition may be filed in the county of the biological father's residence or the county of the child's residence. If a petition for the adoption of the child is pending, the biological father shall file the petition for legitimation in the county in which the adoption petition is filed.
3. A legitimation petition shall set forth the name, age, and sex of the child, the name of the mother, and, if the biological father desires the name of the child to be changed, the new name. If the mother is alive, she shall be named as a party and shall be served and provided an opportunity to be heard as in other civil actions under Chapter 11 of Title 9, the "Georgia Civil Practice Act." If there is a legal father who is not the biological father, he shall be named as a party by the petitioner and shall be served and provided an opportunity to be heard as in other civil actions under Chapter 11 of Title 9, the "Georgia Civil Practice Act."
4. 1. Upon the presentation and filing of a legitimation petition, and after a hearing for which notice was provided to all interested parties, the court may issue an order declaring the biological father's relationship with the child to be legitimate, provided that such order is in the best interests of the child. If such order is issued, the biological father and child shall be capable of inheriting from each other in the same manner as if born in lawful wedlock. Such order shall specify the name by which the child shall be known.
   2. 1. If the court determines by clear and convincing evidence that the father caused his child to be conceived as a result of having nonconsensual sexual intercourse with the mother of his child or when the mother is less than ten years of age, or an offense which consists of the same or similar elements under federal law or the laws of another state or territory of the United States, it shall create a presumption against legitimation.
      2. Notwithstanding Code Section 53-2-3, if the court denies a legitimation petition under this paragraph, the child shall be capable of inheriting from or through his or her father. Notwithstanding Code Section 53-2-4, if the court denies a legitimation petition under this paragraph, the father shall not be capable of inheriting from or through his child.
      3. If there is a pending criminal proceeding in connection with an allegation made pursuant to subparagraph (A) of this paragraph, the court shall stay discovery in the legitimation action until the completion of such criminal proceeding.
5. A legitimation petition may be filed, pursuant to Code Section 15-11-11, in the juvenile court of the county in which a dependency proceeding regarding the child is pending; provided, however, that if either parent has demanded a jury trial as to child support, that issue of the case shall be transferred to superior court for a jury trial. Such petition shall contain the same information and require the same service and opportunity to be heard as set forth in subsection (c) of this Code section. After a hearing, the juvenile court may issue the same orders as set forth in subsection (d) of this Code section.
6. A superior court shall, after notice and hearing, enter an order establishing the obligation to support a child as provided under Code Section 19-6-15.
7. A legitimation petition may also include claims for visitation, parenting time, or custody. If such claims are raised in the legitimation action, the court may order, in addition to legitimation, visitation, parenting time, or custody based on the best interests of the child standard. In a case involving allegations of family violence, the provisions of paragraph (4) of subsection (a) of Code Section 19-9-3 shall also apply.
8. In any petition to establish paternity pursuant to paragraph (4) of subsection (a) of Code Section 19-7-43, the alleged biological father's response may assert a third-party action for the legitimation of the child born out of wedlock if the alleged biological father is, in fact, the biological father. Upon the determination of paternity or if a voluntary acknowledgment of paternity has been made and has not been rescinded pursuant to Code Section 19-7-46.1, the court or trier of fact as a matter of law and pursuant to the provisions of Code Section 19-7-51 may enter an order or decree legitimating a child born out of wedlock, provided that such is in the best interests of the child. In determining the best interests of the child, the court should ensure that the petitioning alleged biological father is, in fact, the biological father and may order the mother, the alleged biological father, and the child to submit to genetic testing in accordance with Code Section 19-7-45. Whenever a petition to establish the paternity of a child is brought by the Department of Human Services, issues of name change, visitation, and custody shall not be determined by the court until such time as a separate petition is filed by one of the parents or by the legal guardian of the child, in accordance with Code Section 19-11-8; if the petition to establish paternity is brought by a party other than the Department of Human Services or if the alleged biological father seeks legitimation, the court may determine issues of name change, visitation, and custody in accordance with subsections (c) and (g) of this Code section. Custody of the child shall remain in the mother unless or until a court order is entered addressing the issue of custody.

(Orig. Code 1863, § 1738; Code 1868, § 1778; Code 1873, § 1787; Code 1882, § 1787; Civil Code 1895, § 2494; Civil Code 1910, § 3013; Code 1933, § 74-103; Ga. L. 1985, p. 279, § 2; Ga. L. 1988, p. 1720, § 5; Ga. L. 1989, p. 441, § 1; Ga. L. 1997, p. 1613, § 14; Ga. L. 1997, p. 1681, § 5; Ga. L. 2000, p. 20, § 10; Ga. L. 2005, p. 1491, § 1/SB 53; Ga. L. 2007, p. 554, § 6/HB 369; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2013, p. 294, § 4-24/HB 242; Ga. L. 2016, p. 219, § 2/SB 331; Ga. L. 2016, p. 304, § 3/SB 64.)

The 2016 amendments. The first 2016 amendment, effective July 1, 2016, added the paragraph (c)(1) (now paragraph (d)(1)) designation; substituted present paragraph (c)(1) (now paragraph (d)(1)) for former subsection (c), which read: "Upon the presentation and filing of the petition, the court may pass an order declaring the father's relationship with the child to be legitimate, and that the father and child shall be capable of inheriting from each other in the same manner as if born in lawful wedlock, and specifying the name by which the child shall be known."; and, added paragraph (c)(2) (now paragraph (d)(2)). The second 2016 amendment, effective July 1, 2016, rewrote this Code section.

- Effect of legitimation on vital records, §§ 31-10-12,31-10-14.

- Pursuant to Code Section 28-9-5, in 1997, subsection (b), as enacted by Ga. L. 1997, p. 1613, § 14, was redesignated as subsection (g) (now subsection (h)).

Pursuant to Code Section 28-9-5, in 2016, a portion of the amendment of paragraph (c)(1) (now paragraph (d)(1)) of this Code section by Ga. L. 2016, p. 219, § 2/SB 331, was treated as impliedly repealed and superseded by Ga. L. 2016, p. 304, § 3/SB 64, due to irreconcilable conflict.

- Ga. L 2007, p. 554, § 1/HB 369, not codified by the General Assembly, provides: "The General Assembly of Georgia declares that it is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage or relationship."

Ga. L. 2007, p. 554, § 8/HB 369, not codified by the General Assembly, provides that the 2007 amendment shall apply to all child custody proceedings and modifications of child custody filed on or after January 1, 2008.

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Ga. L. 2016, p. 304, § 18/SB 64, not codified by the General Assembly, provides: "This Act shall not be construed to affect a voluntary acknowledgment of legitimation that was valid under the former provisions of Code Section 19-7-21.1, nor any of the rights or responsibilities flowing therefrom, if it was executed on or before June 30, 2016."

- For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 121 (1997). For survey article on domestic relations cases for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 223 (2003). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 57 Mercer L. Rev. 403 (2005). For survey article on domestic relations law, see 59 Mercer L. Rev. 139 (2007). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For article on domestic relations, see 66 Mercer L. Rev. 65 (2014). For annual survey of domestic relations law, see 67 Mercer L. Rev. 47 (2015). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 67 Mercer L. Rev. 273 (2015). For article on the 2016 amendment of this Code section, see 33 Ga. St. U.L. Rev. 127 (2016). For annual survey on domestic relations, see 69 Mercer L. Rev. 83 (2017). For note discussing the admissibility of husband and wife's testimony concerning nonaccess in determining the legitimacy of a child, see 6 Ga. St. B.J. 448 (1970). For a note on the role of a judicial determination of paternity in the inheritance rights of illegitimate children in Georgia, see 16 Ga. L. Rev. 171 (1981). For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 234 (1989). For comment on statutes requiring consent of mother, but not of father, as prerequisite to adoption of illegitimate child, violating the fourteenth amendment equal protection clause, see 29 Emory L.J. 833 (1981). For case comment, "In re Baby Girl Eason: Balancing Three Competing Interests in Third Party Adoptions," see 22 Ga. L. Rev. 1217 (1988). For comment, "The Constitutional Rights of Unwed Fathers in Georgia: In re Baby Girl Eason," see 5 Ga. St. U.L. Rev. 591 (1989).

ANALYSIS

• General Consideration
• Procedural Issues
• Application

General Consideration

Constitutionality.

- O.C.G.A. § 19-7-22 does not violate constitutional guarantees of due process and equal protection. Pruitt v. Lindsey, 261 Ga. 540, 407 S.E.2d 750 (1991).

Rights afforded a mother in the scheme for legitimating the mother's child render the mother a defendant within the meaning of Ga. Const. 1983, Art. VI, Sec. II, Para. VI; thus, that portion of O.C.G.A. § 19-7-22(a) that provides for venue in the county of the putative father, when different from the county of the mother, offends the Georgia Constitution. If one portion of a statute is unconstitutional, the Supreme Court of Georgia has the power to sever that portion of the statute and preserve the remainder if the remaining portion of the act accomplishes the purpose the Georgia General Assembly intended; accordingly, severance of this venue provision does not affect the purpose of the remainder of the statute, and the remaining provisions of O.C.G.A. § 19-7-22(a) are to be given full effect. Holmes v. Traweek, 276 Ga. 296, 577 S.E.2d 777 (2003).

- As there were no vested substantive rights that would have been impaired by application of the current version of O.C.G.A. § 19-7-22(b) to an appeal by a putative father, although the prior version was in effect at the time of the juvenile court's ruling, the current version was used for appellate review of the issues raised. In the Interest of A.H., 279 Ga. App. 77, 630 S.E.2d 587 (2006).

- Because the juvenile court erred in the court's application of O.C.G.A. § 19-7-1(b.1), as a child's legal father was not one of the limited number of related third parties who could seek custody from a legal parent, and in light of the superior court's grant of a legitimation petition to the child's biological father, which the legal father did not challenge by way of an appeal, the legal father lacked standing to challenge the biological father's custody under present Georgia law, and therefore no longer had rights to the custody of the child. In the Interest of C.L., 284 Ga. App. 674, 644 S.E.2d 530 (2007).

- Because the juvenile court failed to determine if one parent abandoned their opportunity interest to develop a relationship with the subject child, and failed to conduct a test of that parent's fitness or make a determination based upon the best interests of the child, the court's speculative conclusions were not equivalent to an examination of the benefit that might flow to the child if legitimated. Thus, the court, in essence, interpreted the parent's right to legitimate the child as absolute, without qualification, which was erroneous, requiring reversal. In the Interest of M.K., 288 Ga. App. 71, 653 S.E.2d 354 (2007).

- Being in derogation of common law, statute must be strictly construed. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522 (1974).

§ 15-11-96. - Because a father failed to give written notice to the juvenile court that a legitimation petition was filed, as required by O.C.G.A. § 15-11-96(h), within 30 days of receiving notification of a termination proceeding, the juvenile court properly entered an order terminating the father's parental rights, and the father was thus denied the right to object. In the Interest of S.M.R., 286 Ga. App. 139, 648 S.E.2d 697 (2007).

Construction with O.C.G.A. § 19-9-61. - O.C.G.A. § 19-7-22(f.1) effected a change in the prior rule of standing under which a putative father could not assert custody claims in a legitimation proceeding but did not create an exception to jurisdictional rules that apply in interstate custody cases under O.C.G.A. § 19-9-61 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), O.C.G.A. § 19-9-40 et seq. Slay v. Calhoun, 332 Ga. App. 335, 772 S.E.2d 425 (2015).

- Contrary to a mother's contention, the custody order showed on the order's face such facts as were necessary to give the juvenile court jurisdiction of the person and subject matter because the order referenced and incorporated the legitimation order entered days earlier, reflected on the order's face that all parties were served with a copy of the pleadings and were present, along with their counsel, and the mother did not contest the juvenile court's personal jurisdiction. In the Interest of B. H.-W., 332 Ga. App. 269, 772 S.E.2d 66 (2015).

There is no statutory provision for inheritance by illegitimates, per se, from their fathers. Savage v. Blanks, 117 Ga. App. 316, 160 S.E.2d 461 (1968).

- Exclusive procedure by which fathers may render children legitimate was set forth in the statute. Savage v. Blanks, 117 Ga. App. 316, 160 S.E.2d 461 (1968).

Only a father can by voluntary unilateral action make an illegitimate child legitimate. Parham v. Hughes, 441 U.S. 347, 99 S. Ct. 1742, 60 L. Ed. 2d 269 (1979).

- Clear language of statute showed legislative intent to be that father alone has right to legitimate a child, whether father was married or single. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522 (1974).

It was not intent of legislature that legitimation proceedings be only available to unmarried fathers. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522 (1974).

- Under statute, father's right to legitimate was absolute, subject only to qualification that natural mother may object and if she showed valid reasons why petition should not be granted, judge may deny the petition. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522 (1974).

- Mother of illegitimate child is entitled to file objections to a petition brought by putative father to legitimate such child. Murphy v. Thomas, 89 Ga. App. 687, 81 S.E.2d 26 (1954).

Complaint for legitimation under O.C.G.A. § 19-7-22 cannot be maintained by the mother. Pruitt v. Lindsey, 261 Ga. 540, 407 S.E.2d 750 (1991).

Putative father who filed a legitimation petition pursuant to O.C.G.A. § 17-9-22 had to serve the mother with the petition in a timely manner, pursuant to the service requirements under § 17-9-22(b), as the juvenile court which was ruling on a county agency's petition to terminate parental rights over the child had only orally and provisionally terminated the mother's rights at the time that the putative father's petition for legitimation was filed and, accordingly, the mother was entitled to service. In the Interest of A.H., 279 Ga. App. 77, 630 S.E.2d 587 (2006).

Juvenile court properly granted a father's petition to legitimate the child, then ten months old, and granted placement to the father because the evidence established that the father did not abandon the child and had cared for and remained in contact as did the paternal grandmother, the court applied the parental fitness test, and once the court determined that the father had not abandoned his opportunity interest, the court was not required to apply the best interest of the child standard. In the Interest of B. H.-W., 332 Ga. App. 269, 772 S.E.2d 66 (2015).

- Statute did not deny legitimization to children born through adulterous relationships. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522 (1974).

If a father wants to gain the right to custody or visitation, he must take the steps required by O.C.G.A. § 19-7-22 to "legitimate the child," or, more correctly, to legitimate the relationship between himself and the child. Pruitt v. Lindsey, 261 Ga. 540, 407 S.E.2d 750 (1991).

Father of illegitimate child, legitimated by court order has claim to parental and custodial rights with respect to his child. Mitchell v. Ward, 231 Ga. 671, 203 S.E.2d 484 (1974).

Because an alleged legal father failed to provide the juvenile court with sufficient evidence that the father legitimated the child at issue, the father lacked standing to contest both the custody of the child and the court's order granting custody to DFCS; thus, the custody order was vacated and the case was remanded for further proceedings in which the father could legitimate the child, and if that occurred the court should enter a further order addressing the father's request for custody. In the Interest of A.D., 286 Ga. App. 352, 648 S.E.2d 786 (2007).

- Fact that children have been legitimated does not ipso facto immunize their father from proper showing that children should be removed from his custody. Sims v. Pope, 228 Ga. 289, 185 S.E.2d 80 (1971).

- Legitimation under statute did not render illegitimate child legitimate according to full significance of that term, but only renders him so far legitimate as will enable him to inherit from his father. Hicks v. Smith, 94 Ga. 809, 22 S.E. 153 (1895).

Statute did not have effect of rendering legitimate an illegitimate child according to full significance of that term, but only to legitimate so as to enable child to inherit from father, to enjoy his name and like amenities. The authorized right to inherit does not extend to his father's wife who is not his mother nor to his half brothers and sisters. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522 (1974).

Legitimation of illegitimate child gives the child no more right to support, and no more right than he already had not to be discriminated against because of his birth. Mabry v. Tadlock, 157 Ga. App. 257, 277 S.E.2d 688 (1981).

- O.C.G.A. § 19-7-22 contains no language which can be read as requiring a trial court to consider a visitation issue when determining the merits of a petition to legitimate. In re J.B.K., 169 Ga. App. 450, 313 S.E.2d 147 (1984).

By asserting a counterclaim for paternity, the mother of a child born out of wedlock converted the putative father's legitimation action into a paternity suit; therefore, the trial court did not have the authority to consider an award of visitation to the putative father. Petersen v. Tyson, 253 Ga. App. 431, 559 S.E.2d 164 (2002).

Biological father had no absolute right to grant of legitimacy for purpose of obtaining visitation privileges with his children, and trial judge did not abuse the judge's inherent discretion in refusing to legitimate such children on ground that best interests of children would be served by maintaining status quo in stable family unit of children's mother and mother's present husband. Mabry v. Tadlock, 157 Ga. App. 257, 277 S.E.2d 688 (1981).

Mother is entitled to notice of petition to legitimate and may voice objection. Gregg v. Barnes, 203 Ga. App. 549, 417 S.E.2d 206, cert. denied, 203 Ga. App. 906, 417 S.E.2d 206 (1992).

Father's legitimacy order was properly granted as the father never abandoned his opportunity interest in forming a bond with his child; the father loved the child, continued to make efforts to contact him, and financially supported him. Carden v. Warren, 269 Ga. App. 275, 603 S.E.2d 769 (2004).

- Trial court properly denied the applicants' motion to terminate a father's parental rights and denied the applicants' adoption petition because a State of Alabama paternity order obtained by the father was substantially equivalent to a Georgia legitimation order such that the father had not lost his right to contest the adoption and the father properly domesticated the Alabama order with the trial court. Park v. Bailey, 329 Ga. App. 569, 765 S.E.2d 721 (2014).

Cited in Bennett v. Day, 92 Ga. App. 680, 89 S.E.2d 674 (1955); Hobby v. Burke, 227 F.2d 932 (5th Cir. 1955); Chambers v. Lee, 215 Ga. 629, 112 S.E.2d 614 (1960); Blakemore v. Blakemore, 217 Ga. 174, 121 S.E.2d 642 (1961); Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967); Pettiford v. Frazier, 226 Ga. 438, 175 S.E.2d 549 (1970); Dobyns v. Prudential Ins. Co. of Am., 227 Ga. 253, 179 S.E.2d 915 (1971); Quilloin v. Walcott, 238 Ga. 230, 232 S.E.2d 246 (1977); Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978); Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704 (1981); Williams v. Davenport, 159 Ga. App. 531, 284 S.E.2d 45 (1981); Craighead v. Davis, 163 Ga. App. 145, 290 S.E.2d 358 (1982); Pruitt v. Hooks, 163 Ga. App. 892, 296 S.E.2d 193 (1982); In re M.A.F., 254 Ga. 748, 334 S.E.2d 668 (1985); Prince v. Black, 256 Ga. 79, 344 S.E.2d 411 (1986); Hardy v. Arcemont, 213 Ga. App. 243, 444 S.E.2d 327 (1994); In re Adventure Bound Sports, Inc., 858 F. Supp. 1192 (S.D. Ga. 1994); In the Interest of S.H., 251 Ga. App. 555, 553 S.E.2d 849 (2001); In the Interest of D.W., 264 Ga. App. 833, 592 S.E.2d 679 (2003); Allen v. State, 284 Ga. 310, 667 S.E.2d 54 (2008); Ray v. Hann, 323 Ga. App. 45, 746 S.E.2d 600 (2013); Brooks v. Lopez, 350 Ga. App. 390, 829 S.E.2d 470 (2019).

Procedural Issues

Delay in filing petition.

- After the lapse of thirteen years, public policy forbids the court from becoming involved in a paternity suit when the plaintiff had an opportunity in 1983 to establish paternity even though the plaintiff alleges that the delay was partially a result of his reliance on counsel's correspondence. Grice v. Detwiler, 227 Ga. App. 280, 488 S.E.2d 755 (1997).

- Appellate court rejected a father's contention that the juvenile court erred in holding that a delay in instituting legitimation proceedings justified a finding that the father abandoned his opportunity interest, as the father's reason for the delay, specifically, waiting to obtain the results of genetic testing, was not a condition precedent to filing a legitimation petition; moreover, even with the delay, the father could have filed his legitimation petition and then sought court-ordered genetic testing. In the Interest of J.L.E., 281 Ga. App. 805, 637 S.E.2d 446 (2006).

Order terminating a biological parent's parental rights was upheld on appeal, as the parent failed to file for legitimation of the affected children within 30 days of being notified of the termination petition, despite repeatedly being notified to do so, and despite the appointment of an attorney in the termination proceedings. In the Interest of S.M.G., 284 Ga. App. 64, 643 S.E.2d 296 (2007).

Trial court properly terminated a parent's parental rights to a child as a result of the parent failing to timely file a notice of the petition to legitimate the child with the juvenile court within 30 days. The fact that the termination petition misstated relevant statutes did not relieve the parent of the obligation to file both a petition to legitimate and a notice. In the Interest of M.D., 293 Ga. App. 700, 667 S.E.2d 693 (2008).

- Putative biological father's failure to pay a filing fee and a civil case filing form required by O.C.G.A. § 9-11-3(b) was not fatal to the father's legitimation claim because the clerk, when asked by the father, did not require payment of a filing fee, and the father's attorney merely followed the procedure suggested by the clerk. Brewton v. Poss, 316 Ga. App. 704, 728 S.E.2d 837 (2012).

- Within the context of a parental rights termination proceeding, a juvenile court had the discretion to determine whether to grant an extension of time for a putative father to serve the legitimation petition on the mother, pursuant to O.C.G.A. §§ 15-11-96(i),19-7-22(b), and Georgia case law that allowed application of the procedural rules set out in the Civil Practice Act, including O.C.G.A. § 9-11-4(c) relating to service and extensions thereto; accordingly, the juvenile court's refusal to hear the legitimation petition was error as was the decision to terminate the putative father's parental rights under O.C.G.A. § 15-11-94 without first determining that he had standing or not under the legitimation action. In the Interest of A.H., 279 Ga. App. 77, 630 S.E.2d 587 (2006).

- Trial court abused the court's discretion by denying a putative biological father's motion to sever his petition for legitimation of a son from a husband's adoption proceeding because the father's petition substantially complied with the substance of the legitimation statute, O.C.G.A. § 19-7-22; the petition contained the requisite information, it was served on the wife, and it was timely filed in the proper court, and the father's failure to file his petition as a separate civil action caused no prejudice to anyone. Brewton v. Poss, 316 Ga. App. 704, 728 S.E.2d 837 (2012).

Father's wife has no legal status to object to legitimation even though child was conceived by another woman during wife's marriage to father. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522 (1974).

- Upon legitimation, father stands in same position as any other parent regarding challenges to custody for good and legal cause. Sims v. Pope, 228 Ga. 289, 185 S.E.2d 80 (1971).

- Although O.C.G.A. § 19-7-22 only provides for notice to the mother, this notice implies a right to file objections to the petition. In re Ashmore, 163 Ga. App. 194, 293 S.E.2d 457 (1982); Adamavage v. Holloway, 206 Ga. App. 156, 424 S.E.2d 837 (1992).

- Court of Appeals of Georgia, First Division interprets the language of O.C.G.A. § 19-7-22(b) to mean that the procedural rules set out in the Georgia Civil Practice Act, O.C.G.A. Ch. 11, T. 9, and Georgia case law interpreting those rules should apply to the service of a legitimation petition; accordingly, the Court of Appeals of Georgia, First Division concluded that a juvenile court has discretion to grant a putative biological father a continuance of a legitimation or parental rights termination hearing in order to allow him additional time to perfect service of his legitimation petition upon the biological mother, irrespective of whether the 30-day limitation period set out in O.C.G.A. § 15-11-96(i) has passed. In the Interest of A.H., 279 Ga. App. 77, 630 S.E.2d 587 (2006).

- O.C.G.A. § 19-7-40 expressly prohibited jury trials in paternity actions, and since the mother and former boyfriend consolidated a paternity action with a legitimation proceeding, which did allow for a jury trial, the right to a jury trial under the legitimation statute, O.C.G.A. § 19-7-22, had to give way because otherwise the goals of the paternity statute would be thwarted; accordingly, the mother had no right to a jury trial in the consolidated action. Banks v. Hopson, 275 Ga. 758, 571 S.E.2d 730 (2002).

- Father's petition for legitimation should have been filed as a separate civil action because the language within O.C.G.A. § 19-7-22 suggested that legitimation petitions were separate civil actions; the absence of language explicitly providing for a similar avenue in the adoption context implies that the legislature intended legitimation petitions to be stand-alone actions. Brewton v. Poss, 316 Ga. App. 704, 728 S.E.2d 837 (2012).

- Trial court erred to the extent that the court awarded the respondent attorney fees under O.C.G.A. § 9-15-14(a) as to the petitioner's legitimation claim involving a same sex relationship because the petitioner cited no law from any jurisdiction for the proposition that a person of either gender may petition to legitimate a child absent a biological relationship, and Georgia law made no provision for such situation. Hill v. Burnett, 349 Ga. App. 260, 825 S.E.2d 617 (2019).

- Trial court erred by failing to determine whether legitimizing the child and granting joint custody to the father was in the child's best interest because it was apparent from the trial court's oral pronouncement that the court did not analyze those issues and, therefore, the trial court's judgment was vacated and the case was remanded with direction for the trial court to consider the issues. Westbrook v. Eidys, Ga. App. , S.E.2d (Sept. 10, 2020).

Application

Evidence supported denial of legitimation petition.

- Because the evidence presented before the juvenile court showed that a biological father: (1) initially refused to take a DNA test to establish paternity; (2) was hostile toward the child's case worker; (3) waited over two years after the child's birth to file a legitimation petition; (4) never visited the child and apparently spoke to the child only once on the telephone after the child was placed in foster care; and (5) failed to provide financial support for the child, the evidence was sufficient to allow the juvenile court to determine that the father abandoned any opportunity and interest to develop a relationship with the child and to deny the father's legitimation petition. In the Interest of L.S.T., 286 Ga. App. 638, 649 S.E.2d 841 (2007).

Trial court did not abuse the court's discretion by denying the legitimation petition because the evidence supported the superior court's finding that the biological father abandoned his opportunity interest as he failed to visit and support the mother and child during the pregnancy or after birth and filing a legitimation petition and attending one doctor's visit was not enough. Mathenia v. Brumbelow, 308 Ga. 714, 843 S.E.2d 582 (2020).

- Former husband was improperly awarded the former wife's biological child; the husband was unable to legitimize the child under O.C.G.A. §§ 19-7-22 and19-7-25, as those legitimation procedures only applied to biological fathers, and the husband and wife always acknowledged that the child, born before the parties' marriage, was not the husband's biological father. Veal v. Veal, 281 Ga. 128, 636 S.E.2d 527 (2006).

- When gist of mother's objections to father's petition to legitimate child was that he had no paternal interest in the child but sought only to deprive her of the child by delivering the child into the possession of his mother and father, which if true would authorize the trial court in the exercise of the court's discretion to find that the petition was not filed in good faith and to deny the application for legitimation, the trial court did not err in overruling demurrer (now motion to dismiss) to the mother's objections. Murphy v. Thomas, 89 Ga. App. 687, 81 S.E.2d 26 (1954).

- Trial court erred by setting aside the denial of a biological father's petition for legitimation because the voluntary acknowledgment of paternity preempted the denial as the father failed to make the trial court aware of the acknowledgment and could not subsequently use the document to set aside the trial court's final judgment. Allifi v. Raider, 323 Ga. App. 510, 746 S.E.2d 763 (2013).

- Trial court erred in denying a parent's petition to legitimate a child because the parent's constant payment of financial support coupled with the parent's avowed interest in establishing and maintaining a relationship with the child mitigated against a finding of abandonment. Binns v. Fairnot, 292 Ga. App. 336, 665 S.E.2d 36 (2008), cert. denied, No. S08C1848, 2008 Ga. LEXIS 876 (Ga. 2008); overruled on other grounds by Mathenia v. Brumbelow, 2020 Ga. LEXIS 353 (Ga. 2020).

- Trial court erred in denying a child's extraordinary motion for new trial based on the mother's participation in a fraudulent scheme to have the child legitimated by someone other than the child's father. Clements v. Phillips, 235 Ga. App. 588, 510 S.E.2d 311 (1998).

- It was error for a trial court to award a child's legal and physical custody to the child's stepfather because: (1) the child's mother was permitted to exercise all parental power over the child since the child's father had not legitimated the child under O.C.G.A. § 19-7-22; (2) the stepfather had not adopted the child; and (3) as a result, the stepfather did not have the same status as any of the nonparents specified in O.C.G.A. § 19-7-1(b.1), leaving the trial court with no discretion to award the child's custody to the stepfather. Phillips v. Phillips, 316 Ga. App. 829, 730 S.E.2d 548 (2012).

- Paternal grandparents' right to bring an action for custody of a child was controlled by a showing that their son was the parent of the child, not by their son legitimating that child; a trial court's order dismissing the paternal grandparents' custody action for lack of standing due to a void legitimation of the child was reversed. Reeves v. Hayes, 266 Ga. App. 297, 596 S.E.2d 668 (2004).

- When the mother had notice and had additionally consented to try all issues between the parties, which included competing claims for custody of the child, and when no objection to the legitimation appears of record, the judgment of legitimation was authorized. Gregg v. Barnes, 203 Ga. App. 549, 417 S.E.2d 206, cert. denied, 203 Ga. App. 906, 417 S.E.2d 206 (1992).

- As legal custodians of the child, adoption agency and adoptive parents had an interest in the father's petition to legitimate the child, and when their rights were not represented, they had a right to intervene. In re Ashmore, 163 Ga. App. 194, 293 S.E.2d 457 (1982).

Adoptive parents need not reveal their true identity in their objections to the father's petition to legitimate the child they seek to adopt. In re Ashmore, 163 Ga. App. 194, 293 S.E.2d 457 (1982).

- Even though a petition for modification of child support could be brought in the context of a legitimation proceeding, a showing of changed circumstances is required before an existing award may be modified. Department of Human Resources v. Jones, 215 Ga. App. 322, 450 S.E.2d 339 (1994).

- It was error to grant the petition of the probable biological father to legitimate a minor child whom the legal father had been raising since birth as his own son since the biological father had abandoned his opportunity by failing to take action for nearly three years, the court did not inquire into and apply the best interests of the child standard, and the court did not consider the legal father's prior order. LaBrec v. Davis, 243 Ga. App. 307, 534 S.E.2d 84 (2000).

- Pursuant to O.C.G.A. § 15-11-28(a)(2)(C), the superior court did not have subject matter jurisdiction to terminate the husband's parental rights because the biological father's petition to legitimate a child who was born in wedlock was a petition to terminate the parental rights of the legal father; after the superior court determined that the biological father had not abandoned his opportunity interest, the issue became whether the superior court could grant the petition to legitimate the child, and to grant the legitimation petition required the superior court to first terminate the parental rights of the husband, who was the legal father. Brine v. Shipp, 291 Ga. 376, 729 S.E.2d 393 (2012).

- Trial court did not abuse the court's discretion in granting a father's name change petition, pursuant to O.C.G.A. § 19-7-22(g)(1), when he filed a legitimation petition because the evidence supported the trial court's ruling that it was in the child's best interest, would strengthen the father and son bond, and the child and mother no longer shared the same surname. Riggins v. Stirgus, 319 Ga. App. 790, 738 S.E.2d 635 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Illegitimate child defined.

- Illegitimate child, or bastard, is a child born out of wedlock and whose parents do not subsequently intermarry. 1952-53 Op. Att'y Gen. p. 138.

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Illegitimate Children, § 113 et seq.

- 14 C.J.S., Children Out-of-Wedlock, § 16 et seq.

- Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531.

Statute regarding status or rights of children born out of wedlock as applicable to children born before it became effective, 140 A.L.R. 1323.

What amounts to recognition within statutes affecting the status or rights of illegitimates, 33 A.L.R.2d 705.

Right of putative father to visitation with child born out of wedlock, 58 A.L.R.5th 669.