Legitimation & Paternity


Legitimation and paternity matters arise when a child is born to an unmarried woman. In such instances in the State of Georgia, the mother has all custodial rights to the child because it is clear that she is the mother of the child, while the child’s paternity cannot be certain without further inquiry. Therefore, if a father desires any custodial rights (including visitation rights) or if a mother desires financial support, a lawsuit must be filed to define each party’s rights and obligations with respect to the minor child.

What Is A Legitimation Action?

It has become fairly prevalent today for couples to have children without being married. Although the couple may be living happily together, the children are still labeled with the moniker “illegitimate.” Under Georgia law, if the father is not married to the mother, then the mother is entitled to custody and she exercises all parental power over the child. In order to be recognized as a legal parent, the father must file a legitimation proceeding. In this proceeding, he requests to be recognized as the legal father of the child, have the child capable of inheriting from him, and have the child’s surname changed to his own. A putative father can also raise issues of visitation and custody in a legitimation proceeding. In legitimation cases, child support will also be established, if it has not already been established.

It is also possible for a father to legitimate a child born out of wedlock by the parties signing a “paternity acknowledgment and an “acknowledgment of legitimation”; these documents would need to be signed immediately following the child’s birth. By signing these documents, the father is waiving paternity testing (i.e., he is taking the mother’s word that he is the biological father). However, the father does have a period of time to rescind this acknowledgment. If the acknowledgment is not rescinded and the father later learns that the child is not his, it may be a costly (if not impossible) endeavor to attempt to set aside the paternity acknowledgment. It must be noted that by signing these documents, the father will be recognized as a legal parent but he will not have any custodial or visitations rights; in order to obtain such rights, he would have to file a custody action in the superior court in the county where the mother resides.

In some cases, the mother, for some reason, may deny that the claimed father is, in fact, the biological father of the child. A DNA test can be ordered to be undertaken by the parties and the child, to determine the parentage of the child. The mother may also contest a father’s legitimation action on the grounds that it is not in the child’s best interests.

What Is A Paternity Action?

Just as a legitimation action is filed by a father who claims to be the biological parent of a child, a paternity action is filed by a mother of the child. The sole purpose of a paternity action is to establish a child support order for the benefit of the minor child. Unless the biological father files a counterclaim to legitimate the child, no other rights (e.g., custody, visitation, etc.) will be granted to the biological father through this action.

If you are the parent of a child born outside of a marriage, it is very important for the future protection of your child to ensure that the proper legal procedures have been followed. Certain rights are time sensitive, so it is also important to act as soon as you can so that you do not waive any of your rights to your child. Kupferman & Golden, Attorneys at Law, is available to discuss the procedures available to you to protect your child’s interests now and in the future.