A legitimation case is filed by the biological father in superior court, and the judge decides it in two steps.
Who Files and Where
Under OCGA 19-7-22(b), “[t]he biological father of a child born out of wedlock” may petition the superior court of the county where the mother or other legal custodian lives. If that person lives outside Georgia or cannot be found here after due diligence, the petition may be filed where the father or the child lives. If an adoption petition is already pending, it goes in that county instead.
The mother must be named as a party, served, and given an opportunity to be heard. So must a legal father who is not the biological father. OCGA 19-7-22(c). The petition states the child’s name, age, and sex, the mother’s name, and any new name the father wants for the child.
The Two Questions the Judge Asks
First, did the father abandon his opportunity to be a parent? In In re Baby Girl Eason, 257 Ga. 292 (1987), the Georgia Supreme Court held that a biological father has a constitutionally protected “opportunity interest” in developing a relationship with his child, but that it “is not indestructible” and “can be abandoned by the unwed father if not timely pursued.”
Second, if he did not abandon it, would legitimation serve the child’s best interests? OCGA 19-7-22(d)(1).
Delay Is What Usually Sinks a Petition
In Mathenia v. Brumbelow, 308 Ga. 714 (2020), the superior court found that the father had abandoned his opportunity interest and denied his petition. The Georgia Supreme Court held that the evidence supported that finding and that denying the petition was not an abuse of discretion.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!