Legitimation in Georgia: Why It’s Not Automatic
In Georgia family law, many unmarried fathers wrongly assume that establishing paternity gives them the same rights as married fathers. The Georgia Court has clarified in numerous cases that legitimation is not automatic, even with confirmed paternity.
What Is Legitimation?
Legitimation is the legal process by which an unmarried father gains parental rights. Under O.C.G.A. § 19-7-22, a mother automatically has custodial rights at birth, but a father only has such rights if:
He adopts the child;
He was married to the mother at the time of birth;
He married the mother after birth and paternity isn’t disproved;
He completes legitimation.
Legitimation allows a father to pursue custody, visitation, and be legally recognized for inheritance and other purposes. To legitimate, a father must file a petition in the mother’s county and serve her (and any legal father, if applicable). A mother may also file a paternity action to name the biological father.
The Case: Carden v. Warren, 269 Ga. App. 275 (2004)
In Carden v. Warren, the parents were never married. After the child’s birth, D. Warren paid support and filed for legitimation but let the petition lapse. He remained involved in the child’s life, but when Carden/mother later asked him to relinquish rights so her new husband could adopt the child, Warren filed again for legitimation and requested a name change.
Carden then restricted Warren’s access to the child, allowing him only to interact with the child at public events. She argued he had abandoned his “opportunity interest,” but the trial court disagreed and the Court of Appeals upheld the ruling based on Warren’s continued efforts to maintain contact. The court applied the “best interests of the child” standard to determine whether Warren should be recognized as the legal father.
Carden also challenged the name change, claiming it would “confuse” the child. The Court of Appeals affirmed the trial court's discretion in name changes, stating this authority wouldn't be overturned absent “a clear abuse of discretion.” Because the child already knew Warren as his father, Carden’s argument failed.
“But I Signed the Birth Certificate!”
Paternity ≠ Legitimation
The case Ghrist v. Fricks, 219 Ga. App. 415 (1995), illustrates the distinction. A husband unknowingly raised his wife’s child from an affair, signing the birth certificate and forming a bond with the child. Upon divorce, the husband was granted joint legal and joint physical custody of the child and paid child support. When the wife later married the biological father, the new husband sought custody via a petition to terminate the husband's rights.
The Appellate Court rejected this argument, holding: “Biology is not destiny, and a man has no absolute right to the grant of his petition to legitimate a child simply because he is the biological father.” The Court found that the husband had been awarded rights to the child, and been named the child’s legal father. The Court ruled that it would not be in the best interests of the child to de-legitimate the child. This confirms that paternity determines biological fatherhood, but legitimation determines legal fatherhood and rights.
Why This Matters
Signing a birth certificate or taking a DNA test does not give an unmarried father legal parental rights in Georgia:
Paternity confirms biological fatherhood and establishes financial obligations like child support.
Legitimation grants legal rights to custody, visitation, and decision-making.
Without legitimation, even a father paying support can be legally excluded from decisions about the child’s upbringing, healthcare, and education.
In short, biological fatherhood doesn’t equal legal fatherhood in Georgia. Legitimation is a necessary step for unmarried fathers to fully secure their parental rights.
More questions on how to obtain an award of paternity or legitimation? Let’s talk. Call or text 770-880-4781.
