LaBrec vs. Davis, 243 Ga.App. 307, 534 S.E.2d 84 (2000).

LaBrec and Elizabeth Wolff had been in an intimate relationship for approximately six (6) years prior to the birth of their child; their relationship ended shortly after his birth. LaBrec was present at the child’s birth and he is named as the child’s father on his birth certificate. LaBrec subsequently filed a legitimation and Wolff testified that he was the natural and biological father of the child. LaBrec then filed an action for sole custody of the child; for the first time, Wolff alleged that Davis was the father of the child. Nevertheless, Wolff entered into a consent order providing sole custody of the child to LaBrec.

Approximately one year later, Davis filed an action against LaBrec, seeking to legitimate the child and be awarded custody. Davis claimed that he only recently learned of his potential parentage. After an investigation by a guardian ad litem, the trial court felt compelled to grant Davis’ legitimation, based purely on the conclusion that he did not abandon his opportunity to legitimate the child and he was a fit parent.

On appeal, LaBrec argued that Davis abandoned his opportunity interest to legitimate the child and that it was not in the child’s best interest to be legitimated by Davis; the Court of Appeals of Georgia agreed. The Court emphasized the fact that a familial bond had been established between LaBrec and the child which would require the use of a “best interest” standard, rather than a “fitness” standard.