2020 Georgia Code
Title 19 - Domestic Relations
Chapter 7 - Parent and Child Relationship Generally
Article 3 - Determination of Paternity
§ 19-7-54. Motion to Set Aside Determination of Paternity

1. Unless otherwise specified in this Code section, in any action in which a male is required to pay child support as the father of a child, a motion to set aside a determination of paternity may be made at any time upon the grounds set forth in this Code section. Any such motion shall be filed in the superior or state court that entered the order and shall include:
   1. An affidavit executed by the movant that the newly discovered evidence has come to movant's knowledge since the entry of judgment; and
   2. The results from scientifically credibleparentage- determination genetic testing, as authorized under Code Section 19-7-46 and administered within 90 days prior to the filing of such motion, that finds that there is a 0 percent probability that the male ordered to pay such child support is the father of the child for whom support is required.
2. The court shall grant relief on a motion filed in accordance with subsection (a) of this Code section upon a finding by the court of all of the following:
   1. The genetic test required in paragraph (2) of subsection (a) of this Code section was properly conducted;
   2. The male ordered to pay child support has not adopted the child;
   3. The child was not conceived by artificial insemination while the male ordered to pay child support and the child's mother were in wedlock;
   4. The male ordered to pay child support did not act to prevent the biological father of the child from asserting his paternal rights with respect to the child; and
   5. The male ordered to pay child support with knowledge that he is not the biological father of the child has not:
      1. Married the mother of the child and voluntarily assumed the parental obligation and duty to pay child support;
      2. Acknowledged his paternity of the child in a sworn statement;
      3. Been named as the child's biological father on the child's birth certificate with his consent;
      4. Been required to support the child because of a written voluntary promise;
      5. Received written notice from the Department of Human Services, any other state agency, or any court directing him to submit to genetic testing which he disregarded;
      6. Signed a voluntary acknowledgment of paternity as provided in Code Section 19-7-46.1; or
      7. Proclaimed himself to be the child's biological father.
3. In the event movant fails to make the requisite showing provided in subsection (b) of this Code section, the court may grant the motion or enter an order as to paternity, duty to support, custody, and visitation privileges as otherwise provided by law.
4. 1. In any case when the underlying child support order was issued by a court of this state or by the Department of Human Services and is being enforced by the Department of Human Services, an individual who is involved in the Department of Human Services' enforcement of such order and who intends to file a motion as provided for in subsection (a) of this Code section may request a genetic test from the Department of Human Services, contingent upon advance payment of the genetic test fee. Such request shall be accompanied by a statement setting forth that the requirements to set aside a determination of paternity described in paragraphs (2) through (5) of subsection (b) of this Code section are met. The Department of Human Services may deny such request if:
      1. Genetic testing was previously completed;
      2. The child was adopted either by the requester or the other individual involved in the enforcement by the Department of Human Services;
      3. The child was conceived by means of artificial insemination; or
      4. The Department of Human Services has previously offered genetic testing and the requester refused the opportunity for such testing at that time.
   2. In any case when the nonrequesting individual does not consent to genetic testing, the requesting individual may petition the court to ask for such testing of the appropriate individuals.
5. In the event relief is granted pursuant to subsection (b) of this Code section, relief shall be limited to the issues of prospective child support payments, past due child support payments, termination of parental rights, custody, and visitation rights. In any case when the underlying order was obtained by the Department of Human Services, a court granting the motion to set aside a determination of paternity may relieve the obligor of responsibility for any future or past due amounts, or both, owed to the state. The court may also relieve the obligor of the same that is owed to any other person or entity so long as the obligor adds that person or entity to the underlying motion and provides that person or entity with notice of the action. In all motions brought under this Code section when there is any amount owed to the state, the Department of Human Services shall be made a party. Failure to include the Department of Human Services as a party shall prevent the waiver of any amount owed to the state.
6. The duty to pay child support and other legal obligations for the child shall not be suspended while the motion is pending except for good cause shown; however, the court may order the child support be held in the registry of the court until final determination of paternity has been made.
7. 1. In any action brought pursuant to this Code section, if the genetic test results submitted in accordance with paragraph (2) of subsection (a) of this Code section are provided solely by the male ordered to pay child support, the court on its own motion may, and on the motion of any party shall, order the child's mother, the child, and the male ordered to pay child support to submit to genetic tests. The court shall provide that such genetic testing be done no more than 30 days after the court issues its order.
   2. If the mother of the child or the male ordered to pay child support willfully fails to submit to genetic testing, or if either such party is the custodian of the child and willfully fails to submit the child for testing, the court shall issue an order determining the relief on the motion against the party so failing to submit to genetic testing. If a party shows good cause for failing to submit to genetic testing, such failure shall not be considered willful.
   3. The party requesting genetic testing shall pay any fees charged for the tests. If the custodian of the child is receiving services from an administrative agency in its role as an agency providing enforcement of child support orders, such agency shall pay the cost of genetic testing if it requests the test and may seek reimbursement for the fees from the person against whom the court assesses the costs of the action.
8. If relief on a motion filed in accordance with this Code section is not granted, the court shall assess the costs of the action and attorney's fees against the movant.

(Code 1981, §19-7-54, enacted by Ga. L. 2002, p. 596, § 1; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2015, p. 1433, § 3/HB 568; Ga. L. 2018, p. 160, § 1/HB 344.)

The 2018 amendment, effective July 1, 2018, substituted the present provisions of subsection (d) for the former provisions, which read: "In any case when the underlying child support order was issued by a court of this state or by the Department of Human Services and is being enforced by the Department of Human Services, a movant may request a genetic test from the Department of Human Services, contingent upon advance payment of the genetic test fee by such movant. In any case when the custodian of the child does not consent to testing, a movant may petition the court to ask for testing of the other parent and the child or children."

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 103 (2015). For note on the 2002 enactment of this Code section, see 19 Ga. St. U.L. Rev. 132 (2002).

JUDICIAL DECISIONS

Attempt to rebut presumption of legitimacy by mother.

- Mother failed to rebut the presumption of legitimacy raised by a child's birth during the marriage pursuant to O.C.G.A. §§ 19-7-20 and19-8-1(6) since the mother and husband knew that another man was the biological father of the child, the husband was listed with the mother's consent on the child's birth certificate as the child's father and had always provided financial and emotional support for the child, and since, if the husband had attempted to rebut the presumption of legitimacy the husband would have still been required to make child support payments. Baker v. Baker, 276 Ga. 778, 582 S.E.2d 102 (2003).

- Trial court did not err in denying a wife's motion for genetic testing of her husband in order to delegitimize their child based on a determination of the child's best interest pursuant to O.C.G.A. § 19-7-54. The wife came forward with no evidence that delegitimization would be in the child's best interest, and the husband and son shared a very strong bond. Williamson v. Williamson, 302 Ga. App. 115, 690 S.E.2d 257 (2010).

- Trial court's order requiring that an alleged father and a mother submit to paternity blood testing was erroneous because the doctrine of res judicata clearly proscribed the trial court's reconsideration of the issue of paternity; an unappealed and unmodified final order establishing paternity and child support, which was predicated on the parties' settlement agreement and paternity acknowledgment expressly consented to by the father, adjudged that he was the father of the mother's child, and while the father moved to set aside the final order, the trial court found that he had failed to meet his burden of disestablishing paternity under O.C.G.A. § 19-7-54 and denied the motion. Venable v. Parker, 307 Ga. App. 880, 706 S.E.2d 211 (2011).

Cited in Cothran v. Mehosky, 286 Ga. App. 640, 649 S.E.2d 838 (2007).

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Illegitimate Children, §§ 13 et seq., 86.

- 14 C.J.S., Children Out-of-Wedlock, §§ 71, 72, 95 et seq., 124.

• 19-8-1. Definitions.
• 19-8-2. Jurisdiction and venue of adoption proceedings.
• 19-8-3. Who may adopt a child; when petition must be filed in names of both spouses.
• 19-8-4. (See Editor's notes.) Adoption through the department, child-placing agency, or out-of-state licensed agency.
• 19-8-5. (See Editor's notes.) Third party adoption by party who is not stepparent or relative of child.
• 19-8-6. (See Editor's notes.) Stepparent adoption.
• 19-8-7. (See Editor's notes.) Adoption by certain relatives related to child by blood or marriage.
• 19-8-8. Domestication of adoption of child born in foreign country; Certificate of Foreign Birth; authority of court to change date of birth.
• 19-8-9. Revocation of surrender of rights; time limit; effect of voluntary surrender of rights by legal mother.
• 19-8-10. When surrender or termination of parental rights of living parent not required; service on parents in such cases; involuntary termination of rights.
• 19-8-11. Petitioning superior court to terminate rights of one parent or guardian of child; service of process.
• 19-8-12. Notice to biological father; procedure when identity or location of father not known; effect of order terminating biological father's rights; legitimation of child by father; rights of mother.
• 19-8-13. Petition; filing and contents; financial disclosures; attorney's affidavit; redaction of certain information unnecessary.
• 19-8-14. Timing of adoption hearing; record retention; clerk's duties.
• 19-8-15. Objections to petition for adoption.
• 19-8-16. Investigation by court-appointed agent; criminal history records check for adoption petitioners.
• 19-8-17. Report and findings of investigating agent; dismissal of petition; appointment of guardian ad litem.
• 19-8-18. Hearing; district attorney to be directed to review inducement violations; decree of adoption; factors considered in determining best interests of child; disposition of child on denial of petition.
• 19-8-19. Effect of decree of adoption.
• 19-8-20. Forwarding of decree, report, and subsequent orders to department; issuance of adoption certificate; use as evidence.
• 19-8-21. Adoption of adult individuals; applicability of Code Sections 19-8-19 and 19-8-20.
• 19-8-22. Recognition and effect of order by court or administrative body within or outside United States.
• 19-8-23. Where records of adoption kept; examination by parties and attorneys; use of information by agency and department.
• 19-8-24. Advertising restrictions and requirements; "inducements" defined; unlawful inducements; penalties; exemption for personal communications; civil actions.
• 19-8-25. Effect of prior consent or surrender of rights.
• 19-8-26. Forms.
• 19-8-27. Postadoption contact agreements; definitions; procedure; jurisdiction; warnings; enforcement, termination, or modification; expenses of litigation.
• 19-8-28. Adoption of an orphan.

• 19-8-40. Definitions.
• 19-8-41. Release of responsibility by legal embryo custodian; procedures; presumption of parentage.
• 19-8-42. Petition for expedited order of adoption or parentage; notice; waiver of technical requirements.
• 19-8-43. Finality of orders of adoption or parentage.

- Issuance of new birth certificate following adoption and legitimacy or paternity determination, § 31-10-14.

Powers and duties of Department of Human Resources regarding children and youth services generally, § 49-5-1 et seq.

- Ga. L. 1990, p. 1572, § 5, effective July 1, 1990, repealed the Code sections formerly codified at this chapter and enacted the current chapter. The former chapter consisted of §§ 19-8-1 through19-8-19 and was based on Ga. L. 1855-56, p. 260, § 3; Ga. L. 1859, p. 36, § 2; Ga. L. 1882-83, p. 59, § 1; Ga. L. 1889, p. 69, § 1; Ga. L. 1927, p. 142, § 1; Ga. L. 1941, p. 300, §§ 1-11, 14-17; Ga. L. 1950, p. 289, § 1; Ga. L. 1951, p. 679, § 1; Ga. L. 1956, p. 695, § 1; Ga. L. 1957, p. 339, § 1; Ga. L. 1957, p. 367, § 1; Ga. L. 1960, p. 791, § 1; Ga. L. 1961, p. 219, § 1; Ga. L. 1966, p. 212, §§ 1, 3; Ga. L. 1967, p. 107, § 1; Ga. L. 1967, p. 778, § 1; Ga. L. 1967, p. 803, § 1; Ga. L. 1969, p. 927, § 1; Ga. L. 1970, p. 497, § 10; Ga. L. 1971, p. 403, § 1; Ga. L. 1971, p. 699, § 2; Ga. L. 1972, p. 664, § 2; Ga. L. 1975, p. 797, § 1; Ga. L. 1977, p. 201, § 1; Ga. L. 1979, p. 1182, §§ 1-14; Ga. L. 1982, p. 3, § 19; Ga. L. 1983, p. 3, § 15; Ga. L. 1984, p. 22, § 19; Ga. L. 1984, p. 1433, § 1; Ga. L. 1986, p. 687, § 1; Ga. L. 1986, p. 1516, §§ 2, 3; Ga. L. 1987, p. 992, § 1; Ga. L. 1988, p. 864, § 2; and Ga. L. 1988, p. 1720, § 10.

- Rules and regulations for child placing agencies, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Office of Regulatory Services, Subject 290-9-2.

ARTICLE 1 GENERAL PROVISIONS

Cross references.

- Issuance of new birth certificate following adoption and legitimacy or paternity determination, § 31-10-14.

Powers and duties of Department of Human Resources regarding children and youth services generally, § 49-5-1 et seq.

- Rules and regulations for child placing agencies, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Office of Regulatory Services, Subject 290-9-2.

- For article on virtual adoption, see 15 Mercer L. Rev. 335 (1964). For article advocating revision of former adoption statute governing inheritance by an adopted child, see 4 Ga. L. Rev. 505 (1970). For article surveying legislative and judicial developments in Georgia's divorce, alimony and child custody laws for 1978-79, see 31 Mercer L. Rev. 75 (1979). For annual survey of law of domestic relations, see 38 Mercer L. Rev. 179 (1986). For annual survey article on domestic relations, see 50 Mercer L. Rev. 217 (1998). For note on permissive intervention of grandparents in divorce proceedings, see 26 Ga. L. Rev. 787 (1992). For note on 1991 amendments to this chapter, see 8 Ga. St. U. L. Rev. 57 (1992). For note on 1999 amendments to sections in this chapter, see 16 Ga. St. U. L. Rev. 62 (1999). For comment, "Surrogate Mother Contracts: Analysis of a Remedial Quagmire," see 37 Emory L.J. 721 (1988).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the provisions, decisions under former Article 1 of Chapter 8 of Title 19 prior to the enactment of Ga. L. 1990, p. 1572, § 5 are included in the annotations for this article.

Adoption statutes should be strictly construed and meticulously followed so that beyond all preadventure the adoption will not later be subject to attack. Nelson v. Taylor, 244 Ga. 657, 261 S.E.2d 579 (1979); Johnson v. Smith, 251 Ga. 1, 302 S.E.2d 542 (1983) (decided under former T. 19, C. 8, A. 1).

- General intent appears to be that rights and obligations of a natural parent, and those of an adopting parent, to a child are not conclusively altered until date of final order of adoption. Johnson v. Parrish, 159 Ga. App. 613, 284 S.E.2d 111 (1981) (decided under former T. 19, C. 8, A. 1).

- Adoption statutes do not require the appointing of an attorney for the child. Arrington v. Hand, 193 Ga. App. 457, 388 S.E.2d 52 (1989) (decided under former T. 19, C. 8, A. 1).

- When a father's petition for legitimation was denied, the appellate court did not have jurisdiction to review the order because the father had failed to follow the discretionary procedures to appeal pursuant to O.C.G.A. § 5-6-35(a)(2), nor did he file his application for such review within the time period allowed by § 5-6-35(d); his appeal from an order terminating his parental rights and allowing adoption of the minor by the stepfather, pursuant to O.C.G.A. § 19-8-1 et seq., was also denied since the issues that the father raised related to the lack of a hearing on his legitimation proceeding, which was already determined to not be reviewable. In the Interest of C.M.L., 260 Ga. App. 502, 580 S.E.2d 276 (2003).

Cited in Beasley v. Burt, 201 Ga. 144, 39 S.E.2d 51 (1946); Herrin v. Graham, 87 Ga. App. 291, 73 S.E.2d 572 (1952); Jones v. Harrison, 210 Ga. 373, 80 S.E.2d 155 (1954).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the provisions, opinions under former T. 19, C. 8, A. 1 prior to the enactment of Ga. L. 1990, p. 1572, § 5 are included in the annotations for this article.

Effect of 1977 revision of chapter on Ch. 10 of T. 31. - Although 1977 revision of this chapter did not deal with legitimation or subsequent marriage of parents, interpretation of relevant birth certificate provisions in Ch. 10 of T. 31 must take into account this latest legislative statement of public policy. 1980 Op. Att'y Gen. No. 80-58 (decided under former T. 19, C. 8, A. 1).

RESEARCH REFERENCES

ALR.

- Modern status of law as to equitable adoption or adoption by estoppel, 97 A.L.R.3d 347.

Natural parent's parental rights as affected by consent to child's adoption by other natural parent, 37 A.L.R.4th 724.

Required parties in adoption proceedings, 48 A.L.R.4th 860.

Action for wrongful adoption based on misrepresentation of child's mental or physical condition or parentage, 56 A.L.R.4th 375.

Postadoption visitation by natural parent, 78 A.L.R.4th 218.

Liability of public or private agency or its employees to prospective adoptive parents in contract or tort for failure to complete arrangement for adoption, 8 A.L.R.5th 860.

Attorney malpractice in connection with services related to adoption of child, 18 A.L.R.5th 892.

Adoption of child by same-sex partners, 27 A.L.R.5th 54.