In Georgia, when a man has a child with a woman he is not married to, the unwed father has the obligation to financially support the child but absolutely no rights to legal custody, physical custody or visitation. This means that the unwed father is obligated to provide child support payments but has no input into the raising of their child, no rights to receive school records, no rights to receive medical records, and even no rights to spend quality parenting time with the child. The unwed father’s time with their own child is essentially in the control of the mother, who at time, was not actually divorced.
Georgia places the burden on the unwed father to proactively seek his custodial and visitation rights with his child. This legal process wherein the unwed father takes action, other than marrying the mother (who must divorce first), is to establish his legal rights to his child is known in Georgia as legitimation.
In Georgia, an unwed father may legitimate his child by one of three ways:
(1) Executing a two-part Acknowledgment of Paternity and Acknowledgment Legitimation form with the mother before the child’s first birthday (at least until the state legislature repeals the law that provides for this administrative method of legitimizing a child)
(2) Filing a Petition for Legitimation in Superior Court
(3) Marrying the mother once she’s divorced
For obvious reasons, the administrative method of executing the two-part Acknowledgment of Paternity and Legitimation form is the easiest and quickest method of legitimizing a child. O.C.G.A. §19-7-21.1 allows for both parents to simply sign the form in the presence of a notary public and submit it to the State Office of Vital Records in order to legitimize the child. However, like with many quick and easy solutions, this method comes with a huge downside. The unwed father will still have to file an action in Superior Court to establish any custodial rights and an enforceable parenting time (commonly known as “visitation”) schedule. The form simply makes the child, the legal child of the unwed father but provides no other automatic rights for the father.
If an unwed father desires to establish his legal rights to his child, including his custodial rights, it is advisable that he seeks remedy through the courts. By filing a petition for legitimation, the unwed father may request genetic testing if any questions of paternity exist, request legal custody (rights to school and medical records) and request physical custody or parenting time rights.
It is important that an unwed father file his legitimation action early in the child’s life, even if he has an amicable relationship with the mother who is not yet divorced. The main reason for filing early in the child’s life is that the judge, at his or her discretion, may deny the father’s request if the judge determines that the unwed father waived his right to legitimate the child by waiting too long.
In the legal action for legitimation, the court will require that the mother and father have a Parenting Plan. The Parenting Plan sets out the details of legal custody, physical custody, and the parenting time schedule. Generally, in most cases the mother and father will share joint legal custody. In regards to physical custody, generally one parent will be granted primary physical custody, meaning the child lives with him or her more than 50% of the time. However, in some instances, it is possible that both parents share joint physical custody, meaning that the child lives with the mother 50% of the time and with the father 50% of the time. In either scenario, a parenting time schedule will be specified so that there is a schedule to determine when each parent will have physical custody of the child, in the event the parents cannot agree otherwise. The mother and father can mutually agree on this parenting plan or have the judge to determine the parenting plan after a trial.
While filing an action for legitimation through the courts may be more laborious than signing the two-part acknowledgment form, the Parenting Plan that is created through the legal process leaves the mother and father with a roadmap of how to exercise each of their custodial rights, so that they can successfully co-parent together.
The above is a broad overview of legitimation in Georgia. If you have questions regarding the legitimation process in Georgia, you should consult with a family law attorney.