Paternity and Father’s Rights in Georgia
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.
Georgia Paternity Laws
A child born out of wedlock in Georgia is considered illegitimate, giving the mother of the child rights not available to the father. In Georgia, paternity establishes the identity of the biological father. This allows the mother in a paternity action to collect child support from the father of her child. Or it, in turn, allows the father in a legitimation action to acquire the rights of physical and legal custody. Without first establishing paternity, these issues cannot be addressed by a court.
Legal Definition of “Father” in Georgia
“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:
- He legally adopted the child;
- He was married to the mother at the time the child was conceived or born, making him the “presumed father” (unless paternity was disproved by a final order);
- He married the mother after the child was born and recognized the child as his own;
- He legitimated the child.
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.
Voluntary vs. Involuntary Paternity in Georgia
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 a 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:
- A child’s father (who is unmarried to the mother) to have full rights as a father, including requesting custody and/or visitation;
- The child to inherit from the unmarried father.
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.
In Georgia, there is no clear time limitation established by law to determine paternity.
Establishing Your Parental Rights as a Father
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:
- A voluntary acknowledgment of paternity;
- A birth certificate with the father’s name on it, entered with his consent;
- An administrative determination of paternity;
- Both parents being married at the time the child was born (paternity is presumed).
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.
Under the Official Code of Georgia there are four ways in which you can legitimate your child:
- You were legally married to the mother at the time she gave birth;
- You legally marry the mother after the birth and recognize the child as your own (assuming paternity has not been disproved through the court system);
- You legally adopt the child;
- You file a legitimization action in court.
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.
Failing to Acknowledge Paternity and Time Limits
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.
Legitimation & Paternity Action
A legal action establishing father's rights is called "legitimation." "Paternity action" describes the legal term signifying a father's obligation to his children.
This legitimation process is necessary to establish custody and visitation rights when the parents are unmarried, even if the father is named on the birth certificate. In addition to creating a legal father-child relationship, an order of legitimation gives the child the right to inherit under Georgia law.
Paternity must be established through DNA testing. In Atlanta and throughout Georgia, a legal action to establish paternity (through DNA testing) of the biological father of the child is called a paternity action.
Under certain circumstances, paternity may be challenged by:
- A mother deciding to challenge the paternity of the father who signed the birth certificate;
- A father choosing to challenge paternity after having discovered the child may not be his;
- A man, during a divorce, challenging paternity, even though he had been married to the mother when the child was born and may have treated the child as his own (paternity is presumed, even if the man may have known the child was not his).
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.
Father’s Rights After Divorce
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.
Legal and Physical Custody
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.
Unwed Father's Rights
In Georgia, if parents are unmarried, only the biological mother has legal and physical custody rights to the child. This leaves unwed fathers with no choice but to file a legitimation action in court.
Gaining Custody Rights
A legitimation action will allow for:
- Child support payments to be established;
- The child’s father, even though he is not married to the mother, to claim full parental rights, including requesting visitation and/or custody;
- The child to inherit property and other assets from the unmarried father;
- The father to name the child as his beneficiary for Social Security and other benefits.
Under Georgia law, the courts must do what is in the best interests of the child. Regardless of any agreements between unwed parents or orders to pay child support, legitimation is the only way that a father can legitimately establish his rights as a father to the child.
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.
Best Interests of the Child
Under Georgia law, if a best interests determination is required, the court considers all of the following factors:
- Physical safety and welfare of the child;
- The affection, bonding, emotional ties, and love between the child and each parent, as well as any siblings, half siblings, step siblings, and others;
- The ability of each parent to provide permanence, a good home environment, and stability;
- Any particular attachments;
- The capacity and disposition of each parent to care for the child;
- The mental and physical health of all parties involved;
- The community record, home, and school environments, as well as any special needs;
- Any cultural, familial, and/or religious ties;
- The least disruptive placement alternative;
- The uniqueness of the family;
- Any risks associated with relevant substitute care;
- The child’s and parents’ wishes;
- Any criminal history, evidence of family violence, substance abuse, child abuse, and other negative factors;
- Any recommendation made by a court-appointed Guardian Ad Litem or custody evaluator;
- Any other factors the court deems relevant.
Stepfather's Rights in Georgia
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:
- When the child’s biological father is no longer living, and with the mother’s consent;
- Presuming the child’s biological parents are not married to each other, the biological father voluntarily surrenders his parental rights in writing (not required if the biological parent has had no contact with the child, and has failed to provide support for at least 12 months), while the mother also consents to the adoption, in writing;
- If the biological father has failed to maintain a meaningful parental relationship or pay child support for a year or more, the biological father’s rights may be terminated and the stepparent may adopt the child over objection.
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.
Disestablishing Paternity 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.
Obviously, an experienced attorney who knows the court system and can present your case well is essential. To get our team started on your case, call or contact Stearns‑Montgomery & Proctor online today and request a free consultation.