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Section 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

May 11, 2021 | Family Law, Georgia

(a) 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:

(A) Has legally adopted such child;
(B) 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;
(C) 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
(D) Has legitimated such child pursuant to this Code section.
(b) 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.
(c) 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.”
(d)

(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)

(A) 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.
(B) 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.
(C) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.

OCGA § 19-7-22

Amended by 2016 Ga. Laws 404,§ 3, eff. 7/1/2016.
Amended by 2016 Ga. Laws 361,§ 2, eff. 7/1/2016.
Amended by 2013 Ga. Laws 127,§ 4-24, eff. 1/1/2014.
Amended by 2009 Ga. Laws 102,§ 2-2, eff. 7/1/2009.
Amended by 2007 Ga. Laws 264,§ 6, eff. 1/1/2008.
Amended by 2005 Ga. Laws 413,§ 1, eff. 7/1/2005.