Unwed Fathers’ 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.

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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.