A child born during a marriage is presumed legitimate in Georgia, and the mother’s husband is the child’s legal father until a court order says otherwise.
The Presumption
Under OCGA 19-7-20(a), “[a]ll children born in wedlock or within the usual period of gestation thereafter are legitimate.” That can be disputed, but “[w]here possibility of access exists, the strong presumption is in favor of legitimacy and the proof must be clear to establish the contrary.” OCGA 19-7-20(b).
Who the Legal Father Is
A man is a “legal father” if he “[w]as married to the biological mother of such child at the time such child was born or within the usual period of gestation, unless paternity was disproved by a final order.” OCGA 19-7-22(a)(2)(B). Note what that definition does not require: a biological connection.
A DNA Test Does Not End the Inquiry
In Baker v. Baker, 276 Ga. 778 (2003), DNA testing confirmed the husband was not the child’s biological father, and the trial court let the mother rebut the presumption and refused him custody without weighing the child’s interests. The Georgia Supreme Court reversed, holding that the best interests standard governs when a party seeks to “delegitimize a legitimate child and to break up an existing legally recognized family unit already in existence.”
Rebutting It Is Deliberately Hard
A mother who wants to undo her child’s legitimacy “is not automatically entitled to compel the legal father to submit to genetic paternity testing but must first come forward with evidence sufficient to show that delegitimating the child is in the child’s best interest.” Williamson v. Williamson, 302 Ga. App. 115 (2010).
A legal father moving the other way faces OCGA 19-7-54, which requires a sworn statement of newly discovered evidence, a recent genetic test excluding him, and five further findings before relief is granted.
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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!