2021 Georgia Code
Title 19 - Domestic Relations
Chapter 7 - Parent and Child Relationship Generally
Article 3 - Determination of Paternity
§ 19-7-43. Petition; by Whom Brought; Effect of Agreement on Right to Bring Petition; Stay Pending Birth of Child; Court Order for Blood Tests; Genetic Tests

1. A petition to establish the paternity of a child may be brought by:
   1. The child;
   2. The mother of the child;
   3. Any relative in whose care the child has been placed;
   4. The Department of Human Services in the name of and for the benefit of a child for whom public assistance is received or in the name of and for the benefit of a child not the recipient of public services whose custodian has applied for services for the child; or
   5. One who is alleged to be the father.
2. Regardless of its terms, an agreement, other than an agreement approved by the court in accordance with this article, between an alleged or presumed father and the mother or child does not bar a petition under this Code section.
3. If a petition under this article is brought before the birth of the child, all proceedings shall be stayed until after the birth except service of process, discovery, and the taking of depositions.
4. In any case in which the paternity of a child or children has not been established, the court, either on its own motion or on the motion of any party, may order the mother, the alleged father, and the child or children to submit to genetic tests as specified in Code Section 19-7-45. Such motion, if made by a party, shall be supported by a sworn statement alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties or denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties. Appropriate orders shall be issued by the court. The court shall grant a party's motion unless it finds a good excuse for noncooperation.
5. In any case for the collection of child support involving the Department of Human Services in which the paternity of a child or children has not been established or in which the individual receiving services alleges that paternity rests in a person other than the previously established father, the Department of Human Services shall order genetic testing of the mother, the alleged father, and the child or children as specified in Code Section 19-7-45. No genetic testing shall be undertaken by the Department of Human Services if the child was adopted either by the applicant for services or other alleged parent or if the child was conceived by means of artificial insemination. The need for genetic testing shall be supported by a sworn statement alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties. The parties shall be given notice and an opportunity to contest the order before the Department of Human Services prior to the testing or the imposition of any noncooperation sanction.
6. In any case in which the court or the Department of Human Services orders genetic testing and one or both of the parties to the action is receiving child support services pursuant to Code Section 19-11-6, the Department of Human Services shall pay the costs of such tests subject to recoupment from the alleged father if paternity is established. If the genetic test excludes the possibility of the alleged father being the biological father, then the applicant for services who named the alleged father shall be liable to the Department of Human Services for reimbursement of the paternity testing fee. Upon completion of the first test, but prior to the entry of any order, a second genetic test shall be ordered if the person making the request tenders payment in full of the cost of the initial test as well as the cost of the second test at the time of the request. Any party who, after notice sent by mail to his or her last known address, fails to cooperate with paternity testing or fails to make any child available for paternity testing may be sanctioned by the Department of Human Services. Such sanctions may include but shall not be limited to loss of the opportunity for paternity testing, loss of state benefits, denial of services, and administrative case closure. The Department of Human Services may bring a petition for contempt in the event of such noncooperation in violation of any court order.

(Code 1933, § 74-304, enacted by Ga. L. 1980, p. 1374, § 1; Ga. L. 1985, p. 279, § 3; Ga. L. 1997, p. 1613, § 17; Ga. L. 2002, p. 1247, § 4; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2015, p. 1433, § 1/HB 568; Ga. L. 2016, p. 304, § 6/SB 64.)

The 2016 amendment, effective July 1, 2016, in subsection (d), in the first sentence, substituted "the court, either on its own motion or on the motion of any party, may" for "any party may make a motion for the court to"; in the second sentence, inserted ", if made by a party," near the beginning, deleted "(1)" following "sworn statement" in the middle, and substituted "parties or denying" for "parties; or (2) denying"; in the third sentence, substituted "by the court" for "in accordance with the provisions of this article"; and rewrote the fourth sentence, which read: "The court shall grant the motion unless it finds good cause as defined by the federal Social Security Act or if other good excuse for noncooperation is established."

- 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 article, "Georgia Inheritance Rights of Children Born Out of Wedlock," see 23 Ga. St. B.J. 28 (1986). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 121 (1997). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 103 (2015). For note, "Surrogate Mother Agreements in Georgia: Conflict and Accord with Statutory and Case Law," see 4 Ga. St. U.L. Rev. 153 (1988).

JUDICIAL DECISIONS

Constitutionality.

- Statutory scheme for paternity actions set forth in O.C.G.A. § 19-7-43 et seq. is not unconstitutional, notwithstanding the contention that the statutes create an improper gender-based classification that permits a male to be adjudged to be the father of a child and ordered to make corresponding child support payments without according him the same parental rights which automatically enure to the mother of that same child since: (1) the paternity statutes recognize the intrinsic differences in the circumstances of fathers and mothers of illegitimate children and eliminated the gender-based discrimination of the common law, which placed a duty of support on the mother, but not on the father; and (2) a father can achieve the same benefits as the mother by acknowledging a child as his own and filing a counterclaim for legitimation. Palmer v. Bertrand, 273 Ga. 475, 541 S.E.2d 360, cert. denied, 534 U.S. 951, 122 S. Ct. 346, 151 L. Ed. 2d 262 (2001).

- In a proceeding for year's support by the purported widow of a decedent on behalf of herself and her child, the widow incorrectly relied on O.C.G.A. § 19-7-43 to support her claim that the administrator of the decedent's estate did not have standing to bring a petition to establish the paternity of the widow's child as that statute was not applicable to probate court proceedings involving estate descent and distribution issues. Crowther v. Estate of Crowther, 258 Ga. App. 498, 574 S.E.2d 607 (2002).

Putative father waived venue rights by choosing the county of the residence of the mother and the child and deciding to forego filing his action in the county of his own residence. Holcomb v. Ellis, 259 Ga. 625, 385 S.E.2d 670 (1989).

- 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).

- Father failed to establish that the trial court was required to complete genetic testing prior to ruling on the issue of paternity. Ross v. Small, 355 Ga. App. 483, 844 S.E.2d 535 (2020).

- In an action wherein a juvenile court approved the state's plan for nonreunification of two twin children, the juvenile court erred by ordering a parent to submit to genetic testing and by holding that the parent lacked standing in any future related proceedings until that parent submitted to such testing as the parent had married the children's other parent and recognized the children as the parent's own. Further, the Department of Family and Children Services failed to fully comply with O.C.G.A. § 19-7-43(d) by not supporting the motion with a sworn statement either alleging or denying the parent's paternity. In the Interest of T.W., 288 Ga. App. 386, 654 S.E.2d 218 (2007).

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).

- Because the trial court by the court's judgment of dismissal enforced a contract under which a mother relinquished her right to hold a sperm donor responsible for any resulting child as a valid contract, there was no violation of O.C.G.A. § 19-7-43(b) for lack of a court order approving the contract. Brown v. Gadson, 288 Ga. App. 323, 654 S.E.2d 179 (2007), cert. denied, No. S08C0456, 2008 Ga. LEXIS 236 (Ga. 2008).

Cited in Georgia Dep't of Human Resources ex rel. Jackson v. Jackson, 252 Ga. 403, 314 S.E.2d 105 (1984); Peterson v. Moffitt ex rel. Dep't of Human Resources, 253 Ga. 253, 319 S.E.2d 449 (1984); LaBrec v. Davis, 243 Ga. App. 307, 534 S.E.2d 84 (2000); Henry v. Beacham, 301 Ga. App. 160, 686 S.E.2d 892 (2009); Brewton v. Poss, 316 Ga. App. 704, 728 S.E.2d 837 (2012).

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Illegitimate Children, §§ 36, 38, 39.

- 14 C.J.S., Children Out-of-Wedlock, § 89 et seq.

- Admissibility or compellability of blood test to establish testee's nonpaternity for purpose of challenging testee's parental rights, 87 A.L.R.4th 572.

Right of illegitimate child to maintain action to determine paternity, 86 A.L.R.5th 637.