2020 Georgia Code
Title 19 - Domestic Relations
Chapter 8 - Adoption
Article 1 - General Provisions
§ 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

Universal Citation: GA Code § 19-8-12 (2020)
  1. The General Assembly finds that:
    1. The state has a compelling interest in promptly providing stable and permanent homes for adoptive children, and in preventing the disruption of adoptive placements;
    2. Adoptive children have a right to permanence and stability in adoptive placements;
    3. Adoptive parents have a constitutionally protected liberty and privacy interest in retaining custody of children placed with them for adoption;
    4. A biological father who is not a legal father may have an interest in his biological child.This inchoate interest is lost by failure to develop a familial bond with the child and acquires constitutional protection only if a biological father who is not a legal father develops a familial bond with the child;
    5. The subjective intent of a biological father who is not a legal father, whether expressed or otherwise, unsupported by evidence of acts manifesting such intent, shall not preclude a determination that a biological father who is not a legal father has failed to develop a familial bond with the child; and
    6. A man who has engaged in a nonmarital sexual relationship with a woman is deemed to be on notice that a pregnancy and adoption proceeding regarding a child may occur and has a duty to protect his own rights and interests in that child.He is therefore entitled to notice of an adoption proceeding only as provided in this Code section.
  2. If there is a biological father who is not a legal father of a child and he has not executed a surrender of rights as specified in paragraph (2) of subsection (e) of Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7 or paragraph (3) of subsection (e) of Code Section 19-8-4, 19-8-5, or 19-8-7, he shall be notified of adoption proceedings regarding the child in the following circumstances:
    1. If his identity is known to the petitioner, department, child-placing agency, or out-of-state licensed agency or to the attorney for such individual or entity;
    2. If he is a registrant on the putative father registry who has acknowledged paternity of the child in accordance with subparagraph (d)(2)(A) of Code Section 19-11-9; or
    3. If he is a registrant on the putative father registry who has indicated possible paternity of the child during a period beginning two years immediately prior to the child's date of birth in accordance with subparagraph (d)(2)(B) of Code Section 19-11-9.
    1. Notification provided for in subsection (b) of this Code section shall be given to a biological father who is not a legal father by the following methods:
      1. Notwithstanding subsection (a) of Code Section 9-10-12 which authorizes the use of certified mail, registered mail, return receipt requested, or statutory overnight delivery, one-day service not required, at his last known address, which notice shall be deemed received upon the date of delivery shown on the return or delivery receipt;
      2. Personal service, which notice shall be deemed received when personal service is perfected; or
      3. Publication once a week for three weeks in the official organ of the county where the adoption petition has been filed and of the county of his last known address, which notice shall be deemed received upon the date of the last publication.
    2. If feasible, the methods specified in subparagraph (A) or (B) of paragraph (1) of this subsection shall be used before publication; provided, however, that in the interest of time, publication may be initiated simultaneously with efforts to perfect service personally, by registered mail, or by statutory overnight delivery.
    3. No prior order of court shall be required to publish notice pursuant to this Code section; provided, however, that before publication may be relied upon as a means of service, it shall be averred that, after diligent efforts, service could not be perfected personally, by registered mail, or by statutory overnight delivery.
    1. When the rights of a parent or guardian of a child have been surrendered or terminated in accordance with subsection (a) of Code Section 19-8-4 or the child does not have a living parent or guardian, the department, child-placing agency, or out-of-state licensed agency may file, under the authority of this paragraph, a petition to terminate a biological father's rights to the child with the superior court of the county of the child's domicile, of the county where the child was born, of the county in which is located the principal office of the child-placing agency having legal custody of the child, or of the county in which is located the office of the department having legal custody of the child.
    2. When the rights of a parent or guardian of a child have been surrendered in accordance with subsection (a) of Code Section 19-8-5, 19-8-6, or 19-8-7, the child does not have a living parent or guardian, a consent to adopt has been executed pursuant to paragraph (2) of subsection (a) of Code Section 19-8-6, or the petitioner is seeking to involuntarily terminate parental rights pursuant to Code Section 19-8-10, the petitioner shall file, under the authority of this paragraph, with the superior court of the county of the child's domicile or of the county where the child was born a motion, if a petition for adoption of the child has previously been filed with the court, or a petition to terminate a biological father's rights to the child.
    3. When a petition or motion is filed pursuant to paragraph (1) or (2) of this subsection, the court shall, within 30 days from the date of receipt of the notice required by subsection (b) of this Code section or, when no notice is required to be given, from the date of such filing, conduct a hearing in chambers to determine the facts in the matter.
    4. Unless the identity of a biological father is known to the petitioner, department, child-placing agency, or out-of-state licensed agency or to the attorney for such individual or entity such that he is entitled to notice of the proceedings as provided in this Code section, when the petitioner provides a certificate from the putative father registry stating that there is no registrant identified on the putative father registry acknowledging paternity of the child or indicating possible paternity of the child for a period beginning no later than two years immediately prior to the child's date of birth, then it shall be rebuttably presumed that an unnamed biological father who is not a legal father is not entitled to notice of the proceedings.Absent evidence rebutting the presumption, then no further inquiry or notice shall be required by the court and the court shall enter an order terminating the rights of such unnamed biological father to the child.
  3. When notice is to be given pursuant to subsection (b) of this Code section, it shall advise such biological father who is not a legal father that he loses all rights to the child and will neither receive notice nor be entitled to object to the adoption of the child unless, within 30 days of receipt of such notice, he files:
    1. A petition to legitimate the child pursuant to Code Section 19-7-22 as a separate civil action;
    2. Notice of the filing of the petition to legitimate with the court in which the action under this Code section, if any, is pending; and
    3. Notice of the filing of the petition to legitimate to the person or agency who provided such notice to such biological father.
  4. A biological father who is not a legal father shall lose all rights to the child and the court shall enter an order terminating all of his rights to the child and he shall not thereafter be allowed to object to the adoption and shall not be entitled to receive further notice of the adoption if, within 30 days from his receipt of the notice provided for in subsection (b) of this Code section, he:
    1. Does not file a legitimation petition and give notice as required in subsection (e) of this Code section;
    2. Files a legitimation petition which is subsequently dismissed for failure to prosecute; or
    3. Files a legitimation petition and the action is subsequently concluded without a court order granting such petition and declaring that he is a legal father of the child.
  5. If an alleged biological father who is not a legal father files a legitimation petition after the mother of such child has surrendered her parental rights, the court shall be authorized to consider the affidavit of the mother specified in subsection (g) of Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7, as applicable.If the court finds from the evidence that such biological father has not lived with the child, contributed to the child's support, or provided support or medical care during the mother's pregnancy or hospitalization for the birth of such child, there shall be a rebuttable presumption that the biological father abandoned his opportunity interest to legitimate such child and may deny his petition for legitimation.Such biological father shall not thereafter be allowed to object to the adoption nor be entitled to receive further notice of the adoption proceedings.
  6. If the child is legitimated by his or her biological father, the adoption shall not be permitted except as provided in Code Sections 19-8-4 through 19-8-7.
  7. If the child is legitimated by his or her biological father and in the adoption proceeding the petition for adoption is revoked with prejudice or denied by the court, then a SURRENDER OF RIGHTS/FINAL RELEASE FOR ADOPTION executed by a legal mother pursuant to subsection (a) of Code Section 19-8-4, 19-8-5, or 19-8-7 shall be dissolved by operation of law and her parental rights shall be restored to her.The fact that a legal mother executed a SURRENDER OF RIGHTS/FINAL RELEASE FOR ADOPTION, now dissolved, shall not be admissible as evidence against a legal mother in any proceeding against her.

(Code 1981, §19-8-12, enacted by Ga. L. 1990, p. 1572, § 5; Ga. L. 1997, p. 1686, § 5; Ga. L. 2000, p. 1589, § 3; Ga. L. 2004, p. 631, § 19; Ga. L. 2007, p. 342, § 8/HB 497; Ga. L. 2008, p. 667, § 8/SB 88; Ga. L. 2016, p. 304, § 14/SB 64; Ga. L. 2018, p. 19, § 1-1/HB 159.)

The 2016 amendment, effective July 1, 2016, deleted "or an acknowledgment of legitimation pursuant to Code Section 19-7-21.1" following "Code Section 19-7-22" at the end of paragraph (e)(1) and deleted "or acknowledgment of legitimation" following "legitimate" near the beginning of paragraph (e)(2).

The 2018 amendment, effective September 1, 2018, rewrote this Code section.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2018, a period that was inadvertently deleted was added at the end of paragraph (d)(3).

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 article surveying developments in Georgia domestic relations law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For article, "Continuing Confusion in the Georgia Adoption Process," see 20 Ga. St. B.J. 62 (1983). For note, "In re Baby Girl Eason: Expanding the Constitutional Rights of Unwed Fathers," see 39 Mercer L. Rev. 997 (1988). For comment, "The Putative Father's Right to Notice of Adoption Proceedings: Has Georgia Finally Solved the Adoption Equation?," see 47 Emory L.J. 1475 (1998).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1977, p. 201, § 1 and former § 19-8-7, as amended by Ga. L. 1988, p. 1720, § 10, are included in the annotations for this Code section.

Venue.

- Since venue in an action to recognize a mother's voluntary surrender of parental rights was not challenged below, the issue was waived on appeal; also, proper venue was shown under O.C.G.A. § 19-8-12(d)(1) as the case was filed in the county where the child lived, and since the mother failed to include in the record the transcript of the trial on the petition, the appellate court assumed that the evidence showed proper venue. Ueal v. AAA Ptnrs. in Adoption, Inc., 269 Ga. App. 258, 603 S.E.2d 672 (2004).

Notice to putative father not a jurisdictional issue.

- Determination of whether the notice to the putative father required by former § 19-8-7 had been given affected whether a judgment terminating his rights to the child could be properly entered; it did not affect the question of whether the superior court had jurisdiction of the case. H.C.S. v. Grebel, 253 Ga. 404, 321 S.E.2d 321 (1984) (decided under former § 19-8-7, as amended by Ga. L. 1988, p. 1720, § 10).

Unknown parent.

- Biological father of a child sought to be adopted by a stepparent petitioner was not "known" in the context of O.C.G.A. § 19-8-12 since the mother knew the identity of the father but exercised her right not to disclose his name and address. Cowdell v. Doe, 225 Ga. App. 97, 483 S.E.2d 347 (1997), overruled on other grounds, 274 Ga. 765, 560 S.E.2d 1 (2002).

Right to intervene in father's petition to legitimate child.

- Agency and adoptive parents had interest, as legal custodians of child, in 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) (decided under former § 19-8-7, as amended by Ga. L. 1988, p. 1720, § 10).

Due process notice.

- Grant of adoption to a mother's new husband pursuant to O.C.G.A. § 19-8-6 was proper as it was found to be in the children's best interests; the fact that the father alleged that the father had made several support payments right around the time that the adoption petition was filed did not affect the determination that the father failed in his support duties as there was insubstantial evidence to support a finding as to those payments and there was also evidence that the father did not make payments for the three years prior thereto; the father's claim that his due process rights were violated by not receiving notice that his parental rights could be terminated, pursuant to O.C.G.A. § 19-8-12, lacked merit as the father was personally served with the adoption petition which indicated that his rights could be terminated without his consent and such a possibility was discussed in opening statements. McCurry v. Harding, 270 Ga. App. 416, 606 S.E.2d 639 (2004).

Petitions for legitimation separate civil actions.

- 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).

Adoption petition failed to address statutory factors.

- In a step-father's appeal, a trial court erred by denying the step-father's petition for adoption because the adoption petition did not address the issue of whether the biological father was a parent of the child for purposes of the adoption statutes, O.C.G.A. §§ 19-7-21.1(a)(2)(F) and19-8-1(6). Allifi v. Raider, 323 Ga. App. 510, 746 S.E.2d 763 (2013).

Out of state paternity order substantially equivalent to Georgia legitimation order.

- 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).

Standing to appeal.

- Appellate court denied the adoptive parents' motion to dismiss the appeal filed by a blood relative because the relative was a party and had standing to appeal as the relative was served with a summons, the relative filed a response to their petition, and the trial court ordered the relative to undergo a psychological examination and submit to a home evaluation. Parker v. Stone, 333 Ga. App. 638, 773 S.E.2d 793 (2015).

Cited in Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978); McCary v. Department of Human Resources, 151 Ga. App. 181, 259 S.E.2d 181 (1979); Nelson v. Taylor, 244 Ga. 657, 261 S.E.2d 579 (1979); Hinkins v. Francis, 154 Ga. App. 716, 270 S.E.2d 33 (1980); Thrasher v. Glynn County Dep't of Family & Children Servs., 162 Ga. App. 702, 293 S.E.2d 6 (1982); In re S.B.P., 164 Ga. App. 50, 296 S.E.2d 236 (1982); Sapp v. Solomon, 252 Ga. 532, 314 S.E.2d 878 (1984); Ramos v. Ramos, 173 Ga. App. 30, 325 S.E.2d 415 (1984); Northcraft v. Doe, 192 Ga. App. 666, 385 S.E.2d 756 (1989); Blount v. Knighton, 298 Ga. App. 448, 680 S.E.2d 522 (2009); In the Interest of V.B.L., 306 Ga. App. 709, 703 S.E.2d 127 (2010).

RESEARCH REFERENCES

Am. Jur. 2d.

- 2 Am. Jur. 2d, Adoption, §§ 72, 75.

C.J.S.

- 2 C.J.S., Adoption of Persons, § 80.

ALR.

- Necessity of notice to parents before adoption of child, 24 A.L.R. 416; 76 A.L.R. 1077.

Necessity of securing consent of parents of illegitimate child to its adoption, 51 A.L.R.2d 497.

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 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.

Rights of unwed father to obstruct adoption of his child by withholding consent, 61 A.L.R.5th 151.

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