In Georgia, when a child is born out of wedlock, only the mother has any custodial rights. The only way a father can establish his legal right to custody and visitation is to legitimate his child. A legitimation action is a legal proceeding which a father brings to establish his legal right to custody and visitation with his child. When a child is legitimated, the child then obtains the right to inherit from the father, and vice versa.
In Georgia, there are three ways to legitimate a child. The first way is for the mother and father to marry. The second way, if the child is less than one-year old, is for both parents to sign a Paternity Acknowledgment and Acknowledgment of Legitimation. However, an Acknowledgment of Paternity and Legitimation merely establishes the father’s right to pay child support. It does not provide him with any custodial rights.
For a father who wishes to establish a relationship with his child, and obtain custody or rights, the father can petition the superior court in the county where the parent or party having legal custody or guardianship of the child resides. If the mother or legal guardian resides out of state, or cannot be found after reasonable efforts to locate her have failed, the father can then petition the superior court in his county of residence, or the child’s residence.
It is important to understand that the father’s right to legitimate a child is not absolute. While a court is unlikely to deny legitimation to a father who has always been an active part of the child’s life, a court can find that the father abandoned his “opportunity interest” to legitimate the child if the father made no effort to form a relationship with his child at all. A court can also deny a legitimation petition if they determine that the father is merely attempting to legitimate his child in an effort to harass the child’s mother. In determining whether to legitimate a child, the court shall at all times consider the best interests of the child. Further, problems can arise if the mother was married to someone else at the time her child was born, or within ten months prior to the birth of the child, because the mother’s husband enjoys a presumption under the law that he is the father’s legal child.