Frequently Asked Questions
Legitimation is a legal action which is the only way, other than by marrying the mother of a child, that the father of a child born out of wedlock in the State of Georgia may establish legal rights to his child.
Only the father of a child may file a petition seeking to legitimate his child.
An order of legitimation creates a father and child relationship legally between the petitioner and his child. An order of legitimation establishes that the child may inherit from his legal father and vice versa. An order of legitimation allows the legal father to be listed on the child’s birth certificate as such. An order of legitimation is the only way that the father of a child born out of wedlock can be recognized as the legal father of a child and therefore can petition for custody and/or visitation with this child.
If you are already listed on the child’s birth certificate as the father, but you and the child’s mother were not married to each other, you must still file a petition with the court to legitimate your child.
The Petition for Legitimation must be filed in the mother’s county of residence, the child’s county of residence, in the county where any other person who has legal custody or guardianship resides. If there is an adoption pending, then the Petition can be filed in the county where the adoption was filed.
An exception to where the action must be filed occurs if the mother of the child is deceased and there is no other legal custodian or guardian of the child. Another exception occurs when the mother has disappeared and must be served by publication, but the minor child is living with you. In each of those cases, the action may be filed in the county where you live. As always, you may wish to consult an attorney.
There is a basic filing fee and you should confirm the fee amount with the Clerk of Superior Court. If the mother has not signed a consent and/or waiver of jurisdiction form, she will need to be served with the petition by the sheriff — there is also a fee for service to each address to which the sheriff has to go if you are in the state of Georgia. If you are out of the state and want the sheriff there to serve the mother, you will need to contact the sheriff’s office in the mother’s country of residence to find out the cost of service. (“Service” is an official way to give notice to the mother, and other people involved with your case, that you have filed your case and they have the opportunity to file a response with the Court.)
If the mother has left the child with you and you do not know her address and you have tried but cannot find her, then you will have to serve her with the Petition by Publication. This means that the petition is Completed, filed and then published in the official county newspaper for the county in which you are filing the Petition. The Clerk of Superior Court can also advise you on the amount of the Publication fee.
If the mother was married to someone else when your child was born, or she has listed someone else on your child’s birth certificate as the father of the child you will also have to pay to have that person served. (if you are in the state of Georgia) or you will need to contact the sheriff’s office in that person’s county of residence to have the sheriff serve that person with a copy of the petition. If you don’t know where that person lives, he will also have to be served by publication.
If you do not have the money to pay your filing fees and sheriff’s fees, then you may ask the Court to allow you to file free of charge. The form you will need for this is called a Poverty Affidavit. Ask the Family Law Information Center staff for a copy of the form. Most forms provided by the Family Law Information Center cost a fee of $2.00. No waiver is available for these forms.
In completing the Poverty Affidavit, you make a written statement to the Court about your monthly income and monthly expenses, and why it would be a hardship for you to have to pay the filing fees. The Court will then let you know by a written Order that you may file your case without having to pay.
Please check with the Clerk of Superior Court to determine if the Poverty Affidavit will also waive any fees for Publication (if applicable).
In Fulton County, the Clerk of Superior Court will give you notice of your court date on the same day you file your Petition. This is usually approximately 30 days. However, that may not apply if you are filing in another county. Please check with the Clerk of Superior Court to understand how and when you will receive your court date.
When parents are not married, a petition to establish the paternity of a child may be brought by: (a) the child; (b) the mother of the child; (c) any relative in whose care the child has been placed; (d) the Department of Human Services (Division of Child Support Services) in the name of and for the benefit of a child for whom public assistance is received or in the name of and for the benefit of a child not the recipient of public assistance whose custodian has applied for services for the child; or (e) one who is alleged to be the father. O.C.G.A. § 19-7-43.
Evidence of paternity is the appearance of the name or SSN of the father, entered with his written consent on the birth certificate. This shall constitute a prima facie case of paternity establishment. The burden of proof shifts to the father to rebut such in a proceeding. O.C.G.A. § 19-7-46.1. In any case in which the paternity of a child or children has not been established, the court, either on its own motion or on the motion of any party, may order the mother, the alleged father, and the child or children to submit to genetic tests. O.C.G.A. § 19-7-43.
Whether a man has been adjudicated by a court or voluntarily acknowledged paternity through the administrative process, he shall be legally liable for the support of the child in the same manner as he would if the child was born of a marriage. O.C.G.A. §19-11-14.
The mother may contest the legitimation petition by alleging that the petitioner is not the biological father or that he has lost his “opportunity interest to develop a relationship with the child.” Davis v. Labrec, 274 Ga. 5, 549 S.E.2d 76 (2001); In the Interest of M.K., 288 Ga. App. 71 (2007); Binns v. Fairnot, 292 Ga. App. 336 (2008).
The petition for legitimation may also include claims for visitation, parenting time, or custody. If such claims are raised in the legitimation action, the court may, in addition to legitimation, order visitation, parenting time, or custody, based on the best interests of the child. O.C.G.A § 19-7-22 (f.1). Custody of the child shall remain with the mother unless or until a court order is entered addressing the issue of custody. O.C.G.A. §19-7-22.
In any case in which the paternity of a child or children has not been established, any party may make a motion for the court to order the mother, alleged father and the child to submit to genetic tests. O.C.G.A. § 19-7-43.
When the Department of Human Services (Division of Child Support Services) brings a petition to establish the paternity of a child, issues of name change, visitation and custody shall not be determined by the court until such time as a separate petition is filed by one of the parents or legal guardian of the child. If the petition is brought by a party other than the Department of Human Services, the court may determine issues of name change, visitation and custody. O.C.G.A. §19-7-22.