In Georgia, while mothers have inherent rights concerning their children at birth, establishing fathers’ rights is often more complicated. At Stearns‑Montgomery & Proctor, our family law attorneys handle matters relating to fathers and their children, both in cases of divorce and in those where the parents are unmarried. With over 30 years of experience, we rely on tried and true strategies that can help ensure you play an active role in your child’s life.
“Father” can mean different things to different people, depending upon their family and background. It can mean the man who biologically fathered his children, or the man children call “Dad,” regardless of biological status. In Georgia, both the mother and father who are married have equal rights as parents. However, it is important to note that if the parents are unmarried, only the biological mother has legal and physical custody rights to the child. In order for an unwed father to obtain rights to his child, he must file a judicial petition seeking legitimation.
“Biological Father” vs. “Legal Father”
Under Georgia law, a child’s alleged biological father is the man who impregnated the child’s mother, resulting in the child’s birth. Conversely, the “legal” father is a person who acted in accordance with one of the following:
Acknowledgment of Paternity: The Putative Father Registry
The “putative” father is the one considered to be the father, or has the reputation of being the father. Once paternity has been established, the putative father registry contains information as to who has acknowledged paternity of the child. This is important to the putative father because he may not be listed on the birth certificate.
In Georgia, paternity for a child may be established in a number of ways, including by two unwed parents signing the Voluntary Paternity Acknowledgment Form within one year of the child’s birth. In addition, a father’s paternity can also be made “involuntarily” by court order in a paternity action.
Legal Significance of Paternity
While paternity identifies a man as the biological father of the child, it does not automatically assign the father legal rights with respect to the child. When a child is born out of wedlock, Georgia paternity law requires legitimation in order for a father to gain legal rights over the child.
In general, pursuing legitimation allows for:
Voluntary Acknowledgment of Paternity
The state Paternity Acknowledgement Form is a document used to add a biological father to a child’s birth record. It cannot be used if the child’s mother was married to anyone within 10 months prior to the child’s birth or if there is another father listed on the child’s birth certificate. In those circumstances, court action is necessary to establish paternity and subsequently amend the birth record. This form can be filed at the hospital when the child is born or filed later with the State Office of Vital Records.
Paternity Deadlines
In Georgia, there is no clear time limitation established by law to determine paternity.
There is a common misperception that being named as the father on your child’s birth certificate is enough to ensure you have rights to visitation and for making decisions regarding their care. Unfortunately, this is not the case.
Signing the birth certificate only helps to establish paternity, meaning the identity of the father, and can be used to establish child support payments.
However, it does not give you any parental rights. Only the mother of the child born out of wedlock is entitled to custody and has all parental rights over the child, unless the father legitimates the child.
In Georgia, the following actions can establish paternity:
It is important to note that paternity does not provide a father with additional rights to the child. Instead, except when the parents are married, in order to gain rights as a father, a legitimation action must also be pursued.
Thus, if you have not married the mother of your child (before or after birth) or legally adopted the child, then you must go to court to establish any rights to custody or visitation, even if you are on the child’s birth certificate. Legitimation also establishes the right of inheritance for your child and allows the court to determine the name by which the child will be known.
The petition for legitimization begins with a court hearing. Often the court will order you, the mother, and the child to submit to DNA testing. If you are proved to be the father, the court may order child support, but the court will not necessarily grant legitimacy that includes visitation, parenting time, or custody.
The court will look at several issues before awarding legitimacy. Most importantly, it will look at whether granting legitimization is in the best interests of the child. The court will ask if the pregnancy was due to nonconsensual sex or if there are any allegations of family violence. In addition, the mother will also have the right to present her side of the matter to the court and can make objections to your requests for visitation, parenting time, or custody.
If both parents do not sign the Voluntary Paternity Acknowledgment Form, only the mother’s and child’s names will appear on the birth certificate. The Voluntary Paternity Acknowledgment Form may also be cancelled within 60 days after being signed. After that, a court order will be necessary to have the father’s name removed from the birth certificate. There is no known time limitation on a father’s right to pursue legitimation.
Challenging paternity requires working with an experienced paternity attorney, as these cases can become complicated. They can be even more difficult if a significant amount of time has passed, and the father and child have developed an emotional or psychological bond.
Either parent may file a lawsuit challenging paternity. To initiate the process, a complaint is filed with the court, and the court then typically orders tests and evidence in order to determine paternity. This could involve conducting new tests or challenging a prior finding of paternity based on incorrect test results, proof of fraud, and/or proof of sterility, infertility, infidelity, etc. In many circumstances, the scientific evidence determines that the named father is not the biological father of the child.
We, as a society, are realizing more and more just how important it is for children to have a relationship with both parents, as opposed to assuming that the mother should be the primary caregiver. A father’s role in his child’s life is crucial to that child’s development and welfare.
In Georgia, if a couple was married when they had a child, the husband is presumed to be the child’s father. When it comes to determining a father’s rights concerning the child after divorce or separation, Georgia courts—like others—will base their decision on what is in the best interests of the child. The decision-making process initially treats both the mother and father as equals, and is based on a number of factors.
First and foremost, the court considers the physical safety and welfare of the child. It will look at the emotional ties between the child and each parent, as well as any siblings, half siblings, step siblings, and other family members in the respective households. The court will evaluate each parent’s ability to provide a sense of permanence and a good home environment for the child, which will also involve considering each parent’s capacity and disposition to care for the child in question.
When deciding custody, the court will examine the mental and physical health of all parties involved, as well as any criminal history, evidence of family violence, substance abuse, child abuse, and other negative factors. What is each parent’s living situation? Neighborhood? Does the child have any special needs, and how is each parent equipped to handle them?
The court will also consider the wishes of both parents, as well as the wishes of the child him- or herself. It will also hear any recommendations made by a court-appointed Guardian Ad Litem or custody evaluator. This list is certainly not exhaustive, but gives a general sense of the factors a court will consider when determining child custody. If you are concerned that your rights as a father are being overlooked, reach out to an experienced fathers’ rights attorney immediately.
Gaining Custody Rights
A legitimation action will allow for:
Choosing to Live with the Unwed Father
In Georgia, if the child is 14 or older, he or she has the right to select which parent to live with (unless the child’s choice is not in his or her best interests). Between the ages of 11 and 13, the judge will consider the wishes of the child. However, the judge has discretion, and, again, will make a decision based on what is in the best interests of the child.
Even though stepfathers, in many circumstances, have been heavily involved in raising and building emotional ties with a child, they cannot legally be awarded visitation rights in Georgia paternity laws unless they have gone through the process of legally adopting that child or entering into an agreement with the child’s legal parents. (As of 6/27/18, a state House Bill giving stepparents rights is going to the Senate floor. Also, there are a few outlying cases where a stepparent has custody or visitation despite no contract/adoption being in place.) Of course, once a child reaches the age of 18 or becomes legally emancipated, the child can choose with whom to live or visit.
Stepfather Adoption and Obtaining Parental Rights
If a stepfather is concerned about maintaining certain legal, parental rights with respect to a child, (presuming that, as a spouse, he meets the basic requirements mandated by Georgia law with respect to being generally eligible), he can seek to adopt the child under any one of these circumstances:
It is important to note that, if the child is 14 years or older, he or she must also consent to the adoption. The process is initiated by working with an experienced fathers’ rights attorney to file a Petition for Stepparent Adoption.
Once a stepfather adopts the child, he has the same legal parental rights as a biological parent, meaning that he can seek custody/visitation rights upon divorce. The stepfather will also want to discuss whether a surname change is desired in the adoption.
Learn more about stepparent adoptions in Georgia.
Sadly, paternity fraud is rampant in the U.S. As many as 30 percent of fathers supporting children may not be those children’s biological parents. In some circumstances, a father can even be ordered to pay child support in spite of DNA evidence proving that he is not the child’s actual father. In addition, it can be damaging to both the father and child, who may have developed emotional attachments to each other, only to find out that the paternity is false.
Georgia law allows you to file a motion to set aside determination of paternity. If you have been required to pay child support as the father, any motion must include an affidavit regarding any newly discovered evidence that has come to light since you were ordered to pay support as well as results from scientifically credible parentage-determination genetic testing. This testing must be administered within 90 days prior to filing the motion, and conclude that there is a 0 percent probability that you are the father of the child.
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