2020 Georgia Code
Title 19 - Domestic Relations
Chapter 7 - Parent and Child Relationship Generally
Article 2 - Legitimacy
§ 19-7-25. In Whom Parental Power Over Child Born Out of Wedlock Lies
Only the mother of a child born out of wedlock is entitled to custody of the child, unless the father legitimates the child as provided in Code Section 19-7-22. Otherwise, the mother may exercise all parental power over the child.
(Orig. Code 1863, § 1750; Code 1868, § 1790; Code 1873, § 1799; Code 1882, § 1799; Civil Code 1895, § 2509; Civil Code 1910, § 3028; Code 1933, § 74-203; Ga. L. 1988, p. 1720, § 8; Ga. L. 2008, p. 667, § 5/SB 88; Ga. L. 2016, p. 304, § 4/SB 64.)
The 2016 amendment, effective July 1, 2016, deleted "19-7-21.1 or" following "Code Section" at the end of the first sentence.
Cross references.- Parental power, generally, § 19-7-1.
Editor's notes.- Ga. L. 2008, p. 667, § 1/SB 88, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Care of a Grandchild Act.'"
Ga. L. 2008, p. 667, § 2/SB 88, not codified by the General Assembly, provides: "The General Assembly finds that:
"(1) An increasing number of relatives in Georgia, including grandparents and great-grandparents, are providing care to children who cannot reside with their parents due to the parent's incapacity or inability to perform the regular and expected functions to provide such care and support;
"(2) Parents need a means to confer to grandparents or great-grandparents the authority to act on behalf of grandchildren without the time and expense of a court proceeding; and
"(3) Providing a statutory mechanism for granting such authority enhances family preservation and stability."
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."
Law reviews.- 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 note, "In re Baby Girl Eason: Expanding the Constitutional Rights of Unwed Fathers," see 39 Mercer L. Rev. 997 (1988). 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).
JUDICIAL DECISIONS
Constitutionality of section.
- Statute did not violate U.S. Const., amends. 5 and 14. Quilloin v. Walcott, 238 Ga. 230, 232 S.E.2d 246 (1977), aff'd, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978).
Statute did not necessarily deprive natural father of his parental rights under due process and equal protection under U.S. Const., amends. 5 and 14. Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978).
Consideration of custody issues is not precluded in a situation when that claim as well as legitimation is pending before the court by consent of the parties and there is jurisdiction of the parents, child, and subject matter in the court. Ganny v. Ganny, 238 Ga. App. 123, 518 S.E.2d 148 (1999).
Although O.C.G.A. § 19-7-25 provided that only the mother of a child born out of wedlock was entitled to custody of the child, when a mother moved to Florida with the child but permitted the child to stay with the child's father in Georgia for longer than the child stayed with the mother in Florida, and all the child's health care occurred in Georgia, the child's "home state" was Georgia for purposes of O.C.G.A. § 19-9-61(a). Slay v. Calhoun, 332 Ga. App. 335, 772 S.E.2d 425 (2015).
When mother has prima facie rights conferred by statute.
- Unless child is illegitimate, mother does not prima facie have rights conferred by statute. Therefore, a contract which mother alone entered into with her aunt, consenting for custody and adoption of child, does not constitute a superior right which would prevent trial judge in action for habeas corpus to award child to another aunt, and her husband. Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805 (1946).
Prima facie right to custody was in mother. Kilgore v. Tiller, 194 Ga. 527, 22 S.E.2d 150 (1942); Skinner v. Skinner, 204 Ga. 635, 51 S.E.2d 420 (1949).
Former Code 1933, § 74-203 (see now O.C.G.A. § 19-7-25) must be construed in connection with former Code 1933, § 50-121 (see now O.C.G.A. § 9-14-2). Kilgore v. Tiller, 194 Ga. 527, 22 S.E.2d 150 (1942).
Discretion reposed in trial judge was inapplicable unless parental rights have been lost. Skinner v. Skinner, 204 Ga. 635, 51 S.E.2d 420 (1949).
Mother is entitled to custody as against third parties.
- Mother under former Code 1933, § 74-203 (see now O.C.G.A. § 19-7-25) cannot be denied custody of child in habeas corpus proceeding against third parties unless it was shown that parental power was lost under provisions of former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4). McMillan v. McMillan, 224 Ga. 790, 164 S.E.2d 839 (1968).
Mother within definition of former Code 1933, § 74-203 (see now O.C.G.A. § 19-7-25) cannot be denied custody of child at habeas corpus proceeding against third parties unless it was shown her parental rights were lost under provisions of former Code 1933, § 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4) or that she was unfit. Pettiford v. Mott, 230 Ga. 692, 198 S.E.2d 662 (1973).
Control of minor illegitimate child not legitimated by father belongs exclusively to mother. Perry v. State, 113 Ga. 936, 39 S.E. 315 (1901); Blakemore v. Blakemore, 217 Ga. 174, 121 S.E.2d 642 (1961).
Standing of father of illegitimate child.
- Father of illegitimate child, unless he legitimates the child, has no standing with reference to child. Hall v. Hall, 222 Ga. 820, 152 S.E.2d 737 (1966).
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).
Husband could not legitimize child.
- 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).
Convicting putative father of cruelty by depriving sustenance.
- Even though the mother of an illegitimate child is entitled to custody, the putative father has rights and duties with respect to the child; thus, evidence supported conviction of the father of a four-year-old illegitimate child for cruelty by depriving the child of necessary sustenance. Strickland v. State, 211 Ga. App. 48, 438 S.E.2d 161 (1993).
Mother of illegitimate child was not the only recognized parent under the law; the putative father was also a parent. Nelson v. Taylor, 244 Ga. 657, 261 S.E.2d 579 (1979).
Mother may relinquish control to father.
- When mother of illegitimate children relinquishes all of her rights to father of such children, she cannot thereafter regain possession of children in habeas corpus proceeding, when condition of father to maintain and support them is unchanged. Kirkland v. Canty, 122 Ga. 261, 50 S.E. 90 (1905).
Contest between father of illegitimate child and third persons to whom mother relinquished control. See Day v. Hatton, 210 Ga. 749, 83 S.E.2d 6 (1954).
Appellate court reversed the trial court's judgment awarding custody of a father's daughters to the daughters' grandmother because the trial court did not find that awarding custody to the father, who legitimized his daughters after he learned that their mother had died, would harm the children physically or emotionally. Jones v. Burks, 267 Ga. App. 390, 599 S.E.2d 322 (2004).
When father has prima facie right of custody.
- When mother of child is dead, father has prima facie right of custody, and in order to sustain contention that he has lost his parental power by reason of failure to provide necessaries for his child or by abandonment of his family, a clear and strong case must be made. Chambers v. Lee, 215 Ga. 629, 112 S.E.2d 614 (1960).
Mother's right to recover for homicide of illegitimate son.
- See Robinson v. Georgia R.R. & Banking Co., 117 Ga. 168, 43 S.E. 452, 97 Am. St. R. 156, 60 L.R.A. 555 (1903).
Best interest standard applied after child legitimized.
- Trial court erred in applying the change in circumstances standard to a father's custody petition as the father had legitimized the child, but no previous custody determination had been made; the best interest of the child standard set forth in O.C.G.A. § 19-9-3(a) should have been used. Braynon v. Hilbert, 275 Ga. App. 511, 621 S.E.2d 529 (2005).
Cited in Stuckey v. Jones, 212 Ga. 495, 93 S.E.2d 719 (1956); Pasley v. State, 215 Ga. 768, 113 S.E.2d 454 (1960); Queen v. Ballew, 221 Ga. 1, 142 S.E.2d 841 (1965); Toole v. Gallion, 221 Ga. 494, 144 S.E.2d 360 (1965); Cooper v. Melvin, 223 Ga. 239, 154 S.E.2d 373 (1967); Smith v. Smith, 224 Ga. 442, 162 S.E.2d 379 (1968); Clark v. Buttry, 121 Ga. App. 492, 174 S.E.2d 356 (1970); Sanchez v. Walker County Dep't of Family & Children Servs., 237 Ga. 406, 229 S.E.2d 66 (1976); Berry v. Samuels, 145 Ga. App. 687, 244 S.E.2d 593 (1978); Mabry v. Tadlock, 157 Ga. App. 257, 277 S.E.2d 688 (1981); Williams v. Davenport, 159 Ga. App. 531, 284 S.E.2d 45 (1981); Jordan v. Goff, 160 Ga. App. 636, 287 S.E.2d 640 (1981); In re Ashmore, 163 Ga. App. 194, 293 S.E.2d 457 (1982); In re M.A.F., 254 Ga. 748, 334 S.E.2d 668 (1985); Kennedy v. Adams, 218 Ga. App. 120, 460 S.E.2d 540 (1995); Mezquita v. Campbell, 238 Ga. App. 396, 519 S.E.2d 27 (1999); In the Interest of V.M.T., 243 Ga. App. 732, 534 S.E.2d 452 (2000); Allen v. State, 284 Ga. 310, 667 S.E.2d 54 (2008).
RESEARCH REFERENCES
Am. Jur. 2d.
- 41 Am. Jur. 2d, Illegitimate Children, § 93.
C.J.S.- 14 C.J.S., Children Out-of-Wedlock, §§ 36, 37.
ALR.
- Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531.
Right of mother of illegitimate child to appeal from order or judgment entered in bastardy proceedings, 18 A.L.R.2d 948.
Necessity of securing consent of parents of illegitimate child to its adoption, 51 A.L.R.2d 497.
Right of mother to custody of illegitimate child, 98 A.L.R.2d 417.
Right of putative father to visit illegitimate child, 15 A.L.R.3d 887.
Award of custody of child where contest is between child's father and grandparent, 25 A.L.R.3d 7.
Right of putative father to custody of illegitimate child, 45 A.L.R.3d 216.
Right of natural parent to withdraw valid consent to adoption of child, 74 A.L.R.3d 421.
Mistake or want of understanding as ground for revocation of consent to adoption or of agreement releasing infant to adoption placement agency, 74 A.L.R.3d 489.
What constitutes "duress" in obtaining parent's consent to adoption of child or surrender of child to adoption agency, 74 A.L.R.3d 527.
Power of parent to have mentally defective child sterilized, 74 A.L.R.3d 1224.
Rights and obligations resulting from human artificial insemination, 83 A.L.R.4th 295.
Parental rights of man who is not biological or adoptive father of child but was husband or cohabitant of mother when child was conceived or born, 84 A.L.R.4th 655.
